Why the African Union’s Human Rights Record Remains Poor

Samuel M Makinda*

* Professor of International Relations and Security Studies, Murdoch University. I am enormously grateful to Wafula Okumu, the editors and anonymous referees of this journal for their constructive comments on earlier drafts of this article.

I Introduction

While marking the 40th anniversary of the African Charter on Human and Peoples’ Rights (‘African Charter’)1 in June 2021, the African Union (‘AU’) pointed out some of its daunting challenges in the human rights domain. It stated:

These challenges stem from the aftermath of colonial exploitation; issues of state sovereignty; weak enforcement and accountability measures, limited resources for effective implementation of the human rights standards exacerbated by con icts, corruption, competing priorities at the domestic level, and more recently, the COVID-19 pandemic. These challenges have led to a democratic governance de cit; poverty and deepening inequality; pervasive gender oppression; rising insecurity and violence; con ict over resources brought about by climate change and displacement of people as refugees and internally displaced persons; and the deprivation of the means of livelihood, human dignity and hope for African citizenry.2

This self-assessment appears accurate and thereby obviates the need for this article to elaborate on the reasons for the AU’s poor performance. While the selfassessment partially explains why the AU’s human record is poor, it does not suggest how these challenges might be addressed. This article focuses on the challenges the AU and its members continue to face in promoting and protecting human rights in Africa and goes beyond the self-assessment report.

Despite having some of the best human rights instruments in the world and a continental body with structures dedicated to promoting these rights, Africa continues to experience declining political and civil liberties. This is why in 2022, Freedom House scored only eight African countries as ‘free.’3 Out of the 55 countries assessed, 38 percent were rated as ‘partly free’ and 42 per cent as ‘not free’.4

This article notes that although African leaders determined in 2000 to promote and protect the human and peoples’ rights of their citizens,5 they have fallen short on several fronts. Even before Amartya Sen published Development as Freedom,

6 African leaders recognised the correlation between development and respect for human rights and the rule of law. They adopted structures, mechanisms and processes to create an enabling environment.7 This article posits that although the protection of human rights is a global concern, African governments bear the primary responsibility for ensuring that their citizens enjoy these rights regardless of their identities. However, the international society has a responsibility, directly or indirectly, to act to mitigate human harm and suffering in Africa, particularly in

ensuring that universal norms are not violated in the name of cultural relativism.8 Indeed, international society needs to work closely with the African human rights community to create and maintain an environment conducive to the empowerment and wellbeing of the African people.9

The African Charter, adopted in 1981 by the AU’s predecessor, the Organization of African Unity (‘OAU’), is a unique regional human rights instrument that not only covers political, social and economic rights of both the individual and communities, but also assigns them duties.10 Notably, the African Charter states that ‘the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’.11 Legal scholar Michael Perry made a similar point when he argued that the claim that every person ‘has “inherent dignity”’ suggests that certain things ought not to be done to human beings whatever the circumstances, and that certain things ought always to be done for them.12 It is also important that while committing to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights’,13 the Constitutive Act of the African Union (‘Constitutive Act’) recognised the importance of the Universal Declaration of Human Rights14 and other international human rights instruments.

The remaining part of this article is divided into two parts. The rst explains the AU’s human rights infrastructure and argues that the organisation has, inter alia, a mandate to promote human rights, democracy and the rule of law. The second part argues that the AU’s challenges to carry out its mandates are due largely to the inability of the African Union Commission (‘AUC’) to fully embrace a human rights culture, the failure of some African states to promote and implement human rights, and the ineffectiveness of the AU’s human rights mechanisms.15 This article argues that the best way to improve Africa’s human rights situation is to exercise shared responsibilities among the African people, their states, the AU and international society.

II The AU’s Human Rights Infrastructure

By the expression ‘human rights infrastructure’, this article refers to the parts of the AU’s Constitutive Act that relate to human rights, the African Charter, 16 the African Commission on Human and Peoples’ Rights,17 the African Court on Human and Peoples’ Rights,18 and the AUC and its departments. The human rights infrastructure also includes the African Peer Review Mechanism (‘APRM’),19 the Pan-African Parliament,20 and other related declarations, charters, protocols and guidelines.

The AU, which comprises 55 sovereign states,21 was established in 2002 as the successor to the OAU, which had been created in May 1963.22 The OAU was a product of Pan-Africanism which, until the 1960s, was a movement of the people of African descent in the diaspora and on the African continent. From its beginning, Pan-Africanism was a human rights movement whose twin goals had a universal appeal, namely the liberation and integration of Africans.23 It once echoed the principles that underpinned the 1789 French revolution: liberty, fraternity and equality.24 This did not mean a reproduction of these principles in the way they had been enunciated in 1780s France. To paraphrase Ali Al’Amin Mazrui, it meant pulling the French Revolution ideas ‘out of their temporal and geographical context’ and applying them to the situation in Africa.25 The earliest demands of Pan-Africanists on the African continent were concerned with the ethic of freedom of choice and the idea of legitimate representation in political decision-making.26 In addition, several advocates of Pan-Africanism linked human rights to the attainment of peace and security.27 For example, Kwame Nkrumah, the rst President of Ghana and the most vocal advocate of Pan-Africanism of his generation, asserted that peace around the world was indivisible, and that the ‘indivisibility of peace [was] staked upon the indivisibility of freedom’.28 He also postulated that the attainment of ‘world peace [was] not possible without the complete liquidation of colonialism and the total liberation of peoples everywhere’.29 Unfortunately, the OAU re-interpreted PanAfricanism as a movement of African governments rather than the African peoples’ project. Thus, the OAU arguably became a club for African dictators who suppressed human rights and acted with impunity, thereby prompting the claim that ‘[i]n much of its existence, the organization behaved like a protection club’.30

While the AU is also based on Pan-Africanism, it was designed to take human rights, democratic governance and respect for the rule of law more seriously.

Its establishment in 2002 was preceded by debates about the OAU’s failure to utilise the immediate post-cold war climate to promote what Thomas M Franck described as the emerging right to democratic governance.31 Franck speci cally claimed that democracy was ‘on the way to becoming a global entitlement’.32 This was the time when African opposition leaders and civil society activists started to push for more democratic rights. For example, in February 1990 African Heads of State met in Arusha, Tanzania to sign the African Charter for Popular Participation in Development and Transformation. 33 This meeting was shortly followed by another in Uganda, initially dubbed the Kampala Forum and later referred to as the Conference on Security, Stability, Development and Cooperation in Africa, which noted that peace and development were the bases of security.34 The Kampala Forum observed that the democratic de cit, injustice and human rights violations were causes of insecurity.35 Accordingly, the Kampala Forum proposed new guidelines under which all African states were to be governed by strict adherence to the rule of law, popular participation, respect for human rights and fundamental freedoms.36 The Arusha and Kampala meetings, organised by African Heads of State and Government, were among many in the 1990s that sought to replace the OAU with an organisation that was more willing to promote human rights and the rule of law.37 The ultimate result was the creation of the AU.

Given the content of the AU’s Constitutive Act, it is plausible to argue that the organisation was designed to promote human rights, empower the African people and promote respect for the rule of law.38 Moreover, to the extent that most African states achieved sovereign statehood through the exercise of self-determination, which is a group right recognised in international law, they owe their sovereignty to human rights.39 This point reinforces Christian Reus-Smit’s claim that ‘[e]mergent human rights norms provided the moral resources for the delegitimation of colonialism and the subsequent proliferation of new sovereign states in the developing world, and they have played a similar role in the growth of international society since the end of the Cold War’.40 Thus, unlike Europe where many sovereign states emerged after long interstate wars, African states arose in circumstances where human rights and sovereign statehood could be seen as two sides of the same coin.

Several parts of the AU’s Constitutive Act claim that the organisation’s aims include the promotion and protection of human rights. It stipulates that one of the AU’s objectives is to ‘encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights’.41 It further claims that the AU’s aim is to ‘promote democratic principles and institutions, popular participation and good governance’.42 In addition, the Constitutive Act states that another of the AU’s objectives is to ‘promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments’.43 In addition, the Constitutive Act gives the AU ‘the right … to intervene in a Member State … in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’.44 These parts of the Constitutive Act give the AUC suf cient authority to empower the African people and promote human rights.

This is why this article claims that the AU was constructed on the foundation of the African people’s needs as well as universal norms and principles. Most importantly, it was expected to enhance democracy on the continent.45 Accordingly, in 2007 the AU adopted its African Charter on Democracy, Elections and Governance (‘Charter on Democracy’), whose objective is to promote adherence to ‘the universal values and principles of democracy and respect for human rights’.46 The Charter on Democracy also seeks to ‘[p]romote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the constitution and constitutional order in the political arrangements of’ member states.47 Another key part of the Charter on Democracy is that through it, the AU commits itself to ‘[n]urture, support and consolidate good governance by promoting democratic culture and practice, building and strengthening governance institutions, and inculcating political pluralism and tolerance’.48

In addition, the AU has adopted other instruments for the enhancement of human rights, which include the Guidelines for African Union Electoral Observation and Monitoring Missions, 49 the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa,50 and the Solemn Declaration on Gender Equality in Africa. 51 Moreover, the AU’s Agenda 2063: The Africa We Want seeks to create ‘an integrated, prosperous and peaceful Africa, driven by its own

citizens and representing a dynamic force in the international arena’.52 Through these instruments, which were approved by African foreign ministers and endorsed by African heads of state and government at various times, the AU has been given the mandate to deliver power to the African people.53

In the African Union Non-Aggression and Common Defence Pact, the AU places human rights at the centre of human security, which it de nes as the

security of the individual in terms of the satisfaction of his/her basic needs. It also includes the creation of the social, economic, political, environmental and cultural conditions necessary for the survival and dignity of the individual, the protection of and respect for human rights, good governance and the guarantee for each individual of opportunities and choices for his/her full development.54

This pact demonstrates that the AU has the mandate to promote humanitarianism, which could be described as ‘a practice of caring for or assisting other human beings in circumstances that may be socially, politically, and economically untenable’.55

The AU also operates through several organs that have the responsibility to promote human rights. The AUC, which is the administrative arm of the organisation, has the mandate to enhance human rights through various organs, including its Department of Political Affairs.56 The Peace and Security Council (‘PSC’), which was established in 2004, is also partly based on respect for human rights.57 Apart from the PSC and its af liates, there is the African Peace and Security Architecture whose organs include the Pan-African Parliament,58 and the African Commission on Human and Peoples’ Rights.

There are also other key legal instruments within the AU that guide the implementation of human rights. For example, the Protocol Relating to the Establishment of the Peace and Security Council of the African Union (‘PSC Protocol’)59 identi es several mechanisms that underpin the AU human rights agenda, including the Conference on Security, Stability, Development and Cooperation in Africa Solemn Declaration60 and the Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government. 61 The PSC Protocol also acknowledges the need to work in ‘close cooperation with the African Commission on Human and Peoples’ Rights in all matters relevant to its objectives and mandate’.62

Apart from the AUC, there are at least four instruments that play key roles in promoting, monitoring and implementing human rights. The rst is the African Charter. Its Protocol was adopted in Nairobi, Kenya in June 1981 and came into force in 1987. The purpose of the African Charter is to promote and protect human rights and basic freedoms in Africa.63 The second instrument is the African Commission on Human and Peoples’ Rights, which was established in 1987. Its main function is to monitor the implementation of the African Charter. 64 The third instrument is the African Court. The protocol establishing the African Court was adopted in Burkina Faso in June 1998 and the court itself came into existence in 2004 after more than 15 member states had rati ed it.65 This African Court is the judicial arm of the AU and one of three regional human rights courts — including the European Court of Human Rights and the Inter-American Court of Human Rights.66 Its mandate is to complement and reinforce the work of the African Commission on Human and Peoples’ Rights.67 The fourth instrument is the APRM, which was created in 2003 for the purpose of monitoring the participating AU members in four areas which are crucial for the empowerment of the African people: democracy and political governance; economic governance and management; corporate governance; and socio-economic development.68

From the above, it may be concluded that the AU inherited or created various instruments through which it could help member states and the African people enjoy human rights and democracy. Why then does its human rights record remain poor?

III Challenges of the AU and African Governments to Promote and Protect

Human Rights

The challenges of the AU in its efforts to promote, protect and enhance human rights in Africa are due to many factors, including: corruption within the AUC; the ineffectiveness of the AU instruments that have the mandate to promote and

enhance human rights; and the resistance of some African states. Addressing these challenges is likely to improve the human rights situation in Africa, but it may not necessarily mean the elimination of all impediments to human rights in individual African countries.

A 2007 AU High Level Panel, chaired by respected Nigerian economist Adebayo Adedeji, concluded that the AUC had been handicapped at three levels: ‘First, there is lack of clarity in the set up of its leadership. Second, its activities are spread too widely for it to be effective in playing the role envisaged for it; and thirdly, the management needs to be improved.’69 The Panel claimed that the AUC lacked a professional and collegiate culture and operated in an ‘unhealthy organisational culture’.70 The Panel also said the AUC had ‘inadequate in-house leadership and weak management systems’ that ‘have resulted in poor supervision in the commission, within and between departments, and low morale among staff’.71 The Panel observed that the AUC had ‘ineffective accountability mechanisms’, which were ‘central to the disempowerment of and demoralization among staff’.72 Accordingly, it recommended immediate action to improve the situation, but no action was taken until January 2013, when the AU Executive Council (composed of African foreign ministers) acted. The Executive Council requested the AUC chairperson ‘to take the necessary measures to modernise and strengthen the Commission in line with international best practices, and performance standards, to achieve a high level of Excellence, Accountability, Transparency, Integrity, Professionalism, Gender Equity and Respect for Diversity’.73 The AUC has not carried out these measures satisfactorily.

As a result, the AUC is still plagued by corruption and a leadership malaise characterised by mismanagement of funds, a lack of accountability, nepotism in the appointment of key personnel, sexual harassment, a breakdown in communication among the top leaders and the alienation of civil society groups.74 An audit of the AUC by PricewaterhouseCoopers over the period 2012 to 2018 at the request of the AU Executive Council found that cronyism, contract anomalies and many malpractices continue.75 It found that 71% of the 3,328 staff members were on short-term contracts and 382 xed-term staff contracts were renewed at least once beyond the stipulated terms.76 Thus, despite high-level investigations, corruption, human rights abuses and other problems have continued to hamper the AUC’s ability to discharge its human rights responsibilities. Given this situation, it is not surprising that the AUC has done little or nothing in the face of military coups or unconstitutional changes of government as happened in Chad in April 2021,77 Mali in May 2021,78 Guinea in September 2021,79 Sudan in October 202180 and Burkina Faso in January and September 2022.81 This is partly due to the AUC’s failure to implement the AU’s project on ‘silencing the guns’.82 The AU started the ‘silencing the guns by 2020’ project in 2013 as an effort to create a more peaceful Africa that would, in turn, concentrate on development.83 Wafula Okumu, Andrews Atta-Asamoah and Roba D Sharamo have argued that obstacles to the successful pursuit of this project include ‘institutional challenges resulting from misalignment between existing structures and the urgency of the goals’,84 ‘the lack of conceptual coherence due to differences in interpretations’ of the project,85 and the lack of clarity ‘even among the policy actors who are meant to champion’ the project’s implementation.86 It is these obstacles, in the face of other problems, that have prompted this call for the AUC to be radically transformed if the African people are to be truly empowered by the AU.

The other AU human rights-related institutions that would bene t from a wider transformation include the African Charter, the African Commission on Human and Peoples’ Rights and the African Court. These three institutions have what they need in order to empower the African people, but they face enormous political, legal and nancial challenges. While the functions of the African Charter and the African Commission on Human and Peoples’ Rights are clear, they lack enforcement mechanisms and remedies. If they were to succeed in empowering the African people, they would need to be given levers to encourage or compel African states to comply with their rulings. They also need to be allowed the freedom to make bold decisions. Moreover, African people would not be empowered if the international society looked on helplessly, as it did in 2006, when the AU Assembly effectively altered the report of the African Commission on Human and Peoples’ Rights by authorising, ‘in accordance with Article 59 of the African Charter’, ‘the publication of the 19th Activity Report of the African Commission on Human

and Peoples’ Rights … and its annexes, except for those containing the Resolutions on Eritrea, Ethiopia, the Sudan, Uganda and Zimbabwe’.87 This was a case of the AU Assembly preferencing the reputations of African dictators over the alleviation of human rights abuses.

The 2007 High Level Panel was dismayed to nd that the African Commission on Human and Peoples’ Rights faced many problems, including the refusal of member states to ‘grant [it] authorisation to undertake missions in their countries even though all Member States have rati ed the [African] Charter.’88 The Panel also claimed that ‘the bulk of Member States do not submit their mandatory reports’, and that some of them refused ‘to comply with recommendations of the’ African Commission on Human and Peoples’ Rights.89 The protocol on the African Commission on Human and Peoples’ Rights needs to be amended to give it the power it requires to carry out its duties.

The successes of the African Court have given the African people some hope, but it also faces constraints. Although rationae personae (the entitlement to submit cases to the court) is mainly given to the AUC, state parties and the Regional Economic Commissions, optional powers are also extended to individuals and non-government organisations with observer status in the AUC.90 No appeals are allowed, but under certain circumstances, the court may review cases on which it has ruled.91 One of the constraints the court faces is resistance from states that deny their citizens access or refuse to comply with its rulings.92

While the frustrations of the African Court and other instruments could be blamed on what might be perceived as the strength of state sovereignty in Africa, the problem lies in some African states’ failure to discharge their responsibilities.93 According to Francis M Deng and other analysts, ‘sovereignty carries with it certain responsibilities for which governments must be held accountable’.94 They claim that ‘by effectively discharging its responsibilities for good governance, a state can legitimately claim protection for its national sovereignty’.95 Indeed, sovereignty permits states to enter into agreements with other international actors and, once entered into, these agreements are supposed to be honoured (pacta sunt servanda). As African states designed the AU and its mandate, they are expected to respect it if it is acting legitimately. Moreover, AU protocols, declarations and other instruments have to be approved by African Foreign Ministers and Heads of State and Government before they come into force.96 If an African state fails to uphold its commitments, it effectively forfeits its claim to be respected as a sovereign entity.97

Another human rights instrument being resisted by states is the APRM, which was established in 2003 to help African countries put their politico-economic affairs in order with a view to attracting foreign nancial assistance and investments.98 Although membership in this agency is open to all African countries, it is voluntary. By mid-August 2022, just 40 countries had joined the APRM, with more than 20 having been peer reviewed.99 Although it is the best AU instrument conceived to promote peace and good governance, the APRM’s early warnings were generally ignored. For instance, the APRM accurately predicted the outbreak of postelection violence in Kenya in 2007–08, but its reports were ignored. Steve Ouma Akoth pointed out that the Kenya government’s self-assessment had ‘[failed] to assess a more critical issue: the design of Kenya’s state and governmental structures and the dynamics of the struggle to establish democratic decision-making mechanisms and safeguard human rights’.100 As a result of ignoring the warning, over 1200 Kenyans lost their lives following the disputed December 2007 election results.101 Similarly, the APRM report on South Africa, which was released in September 2007, warned of possible xenophobic violence against ‘refugees, displaced and undocumented persons’ in the country,102 but the South Africa government did not give this issue adequate attention prior to violence erupting in mid-2008.103

The APRM process is supposed to work as follows: states join the APRM mechanism and subsequently develop self-assessment reports.104 The APRM experts then visit the countries in question to assess the reports, collect more information and generate reviews, which are presented to the Heads of State of member countries.105 Thereafter, the reviewed countries are expected to embark on implementing their national programmes of action, speci cally addressing governance issues highlighted in the reviews.106

Although the APRM is an innovative process that could help improve governance, the mechanism had lost enthusiasm by the early 2020s due to various factors, including corruption, nancial mismanagement and the failure of reviewed

governments to implement recommendations.107 In 2020, the AUC asked a team of investigators to look into claims levelled against the APRM, including ‘allegations of “bad governance, corruption, nepotism, favouritism … threats, blackmail, intimidation and arbitrary dismissals”’.108 While the APRM process appears to be no longer a frank dialogue between African Heads of State and Government, it can be made to work effectively if African leaders genuinely support it.

The way forward is for the world to acknowledge that human rights, which keep evolving,109 are universal and any attempt to abuse them anywhere diminishes them everywhere. Therefore, it is the shared responsibility of the African people, African states, the AU and international society to ensure that human rights are respected in Africa.

1 African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (‘African Charter’). 2 African Union, ‘The Realities of 40 Years of Implementing the African Charter on Human and Peoples’ Rights’ (16

June 2021) AU Monthly Bulletin <https://au.int/en/articles/ realities-40-years-implementing-african-charter-human-and-peoples-rights>. 3 Freedom House, ‘Global Freedom Scores’, Countries and Territories (Web Page, 2022) <https://freedomhouse.org/countries/freedom-world/scores>. 4 Ibid. 5 See Constitutive Act of the African Union, opened for signature 11 July 2000 (entered into force 26 May 2001) Preamble para 9 (‘Constitutive Act’). 6 Amartya Sen, Development as Freedom (Anchor Books, 1999). 7 These structures include, but are not limited to, the African Charter (n 1);

African Union Commission, ‘The African Commission on Human and Peoples’

Rights: At the Forefront of Advancing Human Rights’ (July 2016) AU ECHO 58 <https://au.int/sites/default/ les/newsevents/workingdocuments/31192wd-au_echo_magazine_-_web.pdf> (‘Forefront of Advancing Human Rights’);

African Union, Protocol to the African Court on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, opened for signature 10 June 1988 (entered into force 25 January 2004) <https:// au.int/sites/default/ les/treaties/36393-treaty-0019_-_protocol_to_the_african_ charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_ court_on_human_and_peoples_rights_e.pdf> (‘African Court Protocol’); ‘African

Peer Review Mechanism (APRM)’, African Union (Web Page) <https://au.int/ en/organs/aprm> (‘African Peer Review Mechanism (APRM)’); African Union,

Protocol to the Constitutive Act of the African Union Relating to the Pan-African

Parliament, opened for signature 27 June 2014 (not yet in force) <https://au.int/ sites/default/ les/treaties/7806-treaty-0047_-_protocol_to_the_constitutive_act_ of_the_african_union_relating_to_the_pan-african_parliament_e.pdf> (‘Protocol to the Constitutive Act’). 8 For an excellent critique of relativism, see Abdullahi Ahmed An-Na’im,

‘Human Rights in the Muslim World: Socio-Political Conditions and Scriptural

Imperatives’ (1990) 3 Harvard Human Rights Journal 13. 9 For the claim that human rights ought to always to be regarded as values that go beyond national boundaries, see Sam Makinda, ‘Following Postnational

Signs: The Trail of Human Rights’ (2005) 37(9) Futures 943. 10 African Charter (n 1) art 27(1). It is also worth noting that there are some inconsistencies regarding the OAU’s spelling of ‘Organization’. This article will use the American English spelling that is present in the African Charter. 11 African Charter (n 1) art 27(2). 12 Michael J Perry, The Idea of Human Rights: Four Inquiries (Oxford University

Press, 1998) 4–5. 13 Constitutive Act (n 5) art 3(h). 14 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc

A/810 (10 December 1948). 15 For a slightly different perspective, see Thomas Kwasi Tieku, Stefan Gänzle and

Jarle Trondal, ‘People Who Run African Affairs: Staf ng and Recruitment in the

African Union Commission’ (2020) 58(3) Journal of Modern African Studies 461. 16 African Charter (n 1). 17 Ibid art 30. See also ‘Forefront of Advancing Human Rights’ (n 7) 58–60. 18 See African Court Protocol (n 7). 19 See ‘African Peer Review Mechanism (APRM)’ (n 7). 20 The AU Assembly adopted the Protocol to the Constitutive Act (n 7) in June 2014. 21 Despite the fact that the United Nations still lists Western Sahara (Sahrawi

Arab Democratic Republic) as a Non-Self-Governing territory, the African Union has admitted it to full membership and thus describes itself as a 55-member

organisation. See ‘Member States’, African Union (Web Page) <https://au.int/en/ member_states/countrypro les2>; ‘Western Sahara’, United Nations (Web Page) <https://www.un.org/dppa/decolonization/en/nsgt/western-sahara>. 22 Samuel M Makinda, F Wafula Okumu and David Mickler, The African Union:

Addressing the Challenges of Peace, Security and Governance (Routledge, 2nd ed, 2015) 12. 23 See David Mickler and Kathryn Sturman, ‘Pan-Africanism, Participation and

Legitimation in the African Governance Architecture’ (2021) 59(2) Journal of

Common Market Studies 446, 447–8. 24 See Thomas Houser Rasmussen, ‘The French Revolutionary Tradition and

African Ideologies of Independence and Modernization’ (PhD Thesis, Syracuse

University, 1967) 1, 52–84. The declarations of the 1919 Pan-African Congress in Paris, the 1945 Pan-African Congress in Manchester and the rst conference of independent African states in Accra in 1958, which sought goals inspired by the 1789 French Revolution, are set out in Colin Legum, Pan-Africanism: A Short

Political Guide (Frederick A Praeger, 1962) 133–48. 25 Ali Al’Amin Mazrui, ‘Edmund Burke and Re ections on the Revolution in the

Congo’ (1963) 5(2) Comparative Studies in Society and History 121, 121. 26 This was a constant theme in the speeches of leading Pan-Africanists. See, eg, Tom Mboya, ‘Political Tactics in the Freedom Struggle’ in Gideon-Cyrus M

Mutiso and S W Rohio (eds), Readings in African Political Thought (Heinemann

Educational Books, 1975) 170, 170–4. 27 See Kwame Nkrumah, Axioms of Kwame Nkrumah: Freedom Fighters’ Edition (Panaf Books, 2nd ed, 1969). 28 Ibid 106. 29 Ibid (emphasis added). 30 Samuel M Makinda and F W Okumu, The African Union: Challenges of

Globalization, Security, and Governance (Routledge, 2008) 20. See also ‘OAU and Human Rights’ (3 May 2013) New African <https://newafricanmagazine. com/3733/>. 31 Thomas M Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86(1)

The American Journal of International Law 46. 32 Ibid 46. 33 Economic Commission for Africa, African Charter for Popular Participation in

Development and Transformation, 25th sess, UN Doc E/ECA/CM/16/11 (12–16

February 1990). 34 Joel Ng, Contesting Sovereignty: Power and Practice in Africa and Southeast

Asia (Cambridge University Press, 2021) 109–14. See also Nse E Akpan, John E

Edeki and Imere L Nwokah, ‘The Challenges of Human Security in Sub-Saharan

Africa: The Way Forward’ (2018) 3(6) International Journal of English Literature and Social Sciences 1190, 1195. 35 See Akpan, Edeki and Nwokah (n 34) 1195. 36 See Francis M Deng and I William Zartman, A Strategic Vision for Africa: The

Kampala Movement (Brookings Institution Press, 2002) 147. 37 See Ng (n 34) 109–16. 38 Constitutive Act (n 5) art 3. 39 Samuel M Makinda, ‘Contesting Sovereignty’ in Antonio Franceschet (ed), The

Ethics of Global Governance (Lynne Rienner, 2009) 21, 30–3. 40 Christian Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’ (2001) 27(4) Review of International Studies 519, 520. 41 Constitutive Act (n 5) art 3(e). 42 Ibid art 3(g). 43 Ibid art 3(h). 44 Ibid art 4(h). 45 See Samuel M Makinda, ‘Democracy and Multi-Party Politics in Africa’ (1996) 34(4) Journal of Modern African Studies 555.

46 African Charter on Democracy, Elections and Governance, opened for signature 30 January 2007 (entered into force 15 February 2012) art 2(1) (‘Charter on

Democracy’). 47 Ibid art 2(2). 48 Ibid art 2(6). 49 Organization of African Unity, Guidelines for African Union Electoral Observation and Monitoring Missions, Doc No EX.CL/91(V) Annex II, 38th ord sess, 8 July 2002.

These guidelines were approved by the OAU Heads of State and Government on the OAU’s last day as the African Union came into existence on 9 July 2002. 50 African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 11 July 2003 (entered into force 25 November 2005). 51 African Union, Solemn Declaration on Gender Equality in Africa, Doc No

Assembly/AU/Decl.12(III) Rev 1, 3rd ord sess, 6–8 July 2004. 52 African Union Commission, Agenda 2063: The Africa We Want (Agenda,

September 2015) 1. 53 The AU Assembly comprises African Heads of State and Government while the

Executive Council comprises the Foreign Affairs Ministers of African countries: see Constitutive Act (n 5) arts 6, 10. 54 African Union, African Union Non-Aggression and Common Defence Pact, opened for signature 1 January 2005 (entered into force 18 December 2009) art 1(k). 55 Samuel M Makinda, ‘Review Essay: Human Rights, Humanitarianism, and Transformation in the Global Community’ (2001) 7(3) Global Governance 343, 344. 56 Makinda, Okumu and Mickler (n 22) 57–61. 57 Ibid 53–5. 58 Protocol to the Constitutive Act (n 7) art 2. 59 African Union, Protocol Relating to the Establishment of the Peace and Security

Council of the African Union, opened for signature 9 July 2002 (entered into force 26 December 2003) (‘PSC Protocol’). 60 Organization of African Unity, Conference on Security, Stability, Development and Cooperation in Africa Solemn Declaration, Doc No AHG/Decl.4(XXXVI), 36th ord sess, 10–12 July 2000. 61 Organization of African Unity, Declaration on the Framework for an OAU

Response to Unconstitutional Changes of Government, Doc No AHG/

Decl.5(XXXVI), 36th ord sess, 10–12 July 2000. 62 PSC Protocol (n 59) art 19. 63 African Charter (n 1) arts 1–2. 64 Ibid art 45; ‘Forefront of Advancing Human Rights’ (n 7) 58, 60. 65 African Court Protocol (n 7). 66 ‘A Rough Guide to the Regional Human Rights Systems’, Universal Rights

Group (Web Page) <https://www.universal-rights.org/human-rights-roughguides/a-rough-guide-to-the-regional-human-rights-systems/>. 67 African Court Protocol (n 7) art 2. 68 ‘African Peer Review Mechanism (APRM)’ (n 7). 69 African Union, Audit of the African Union (Report, 18 December 2007) xxiv [10] <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/RO%20Audit%20of%20the%20AU.pdf>. 70 Ibid 50 [123]. 71 Ibid 49–50 [121]. 72 Ibid 50 [122]. 73 African Union, Decision on the Institution and Capacity Building Aspects of the Chairperson’s Statement, Doc No EX.CL/755(XXII), 22nd ord sess, 21–25

January 2013, para 5. 74 See Simon Allison, ‘AU “Covering Up” Perpetrators’ Abuse’, Mail and Guardian (online, 17 May 2019) <https://mg.co.za/article/2019-05-17-00-au-coveringup-perpetrators-abuse/>. For an analysis of poor leadership in Africa, see

Samuel M Makinda, ‘Africa’s Leadership Malaise and the Crisis of Governance’ in Kobena T Hanson, George Kararach and Timothy M Shaw (eds), Rethinking

Development Challenges for Public Policy: Insights from Contemporary Africa (Palgrave Macmillan, 2012) 54. 75 Victoria Ojeme, ‘New Audit Report Unearths Institutional Corruption, Sex

Abuse at AU Commission’, Vanguard (online, 24 February 2021) <https://www. vanguardngr.com/2021/02/new-audit-report-unearths-institutional-corruptionsex-abuse-at-au-commission/>. 76 Ibid. 77 See ‘Chad after Idriss Déby: African Union Urges End to Military

Rule’, BBC News (online, 24 April 2021) <https://www.bbc.com/news/ world-africa-56870996>. 78 Boubacar Haidara, ‘Inside Mali’s Coup within a Coup’, The

Conversation (online, 27 May 2021) <https://theconversation.com/ inside-malis-coup-within-a-coup-161621>. 79 Abdourahmane Diallo, Ruth Maclean and Mady Camara, ‘Special Forces

Colonel Says He Has “Seized” Guinea’s President’, The New York Times (online, 10 September 2021) <https://www.nytimes.com/2021/09/05/world/africa/ guinea-coup.html>. 80 ‘Sudan Coup: A Really Simple Guide’, BBC News (online, 25 October 2021) <https://www.bbc.com/news/world-africa-59035053>. 81 ‘Capt Ibrahim Traoré: Burkina Faso’s New Military Ruler’, BBC News (online, 3

October 2022) <https://www.bbc.com/news/world-africa-63117008>. 82 See Wafula Okumu, Andrews Atta-Asamoah and Roba D Sharamo, ‘Silencing the Guns in Africa by 2020: Achievements, Opportunities and Challenges’ (Monograph No 203, Institute for Security Studies, August 2020) 1–2. 83 Ibid 1–4. 84 Ibid vi. 85 Ibid. 86 Ibid. 87 African Union, Decision on the 19th Activity Report of the African Commission on Human and Peoples’ Rights, Doc No EX.CL/236(VIII), 8th ord sess, 16–21

January 2006, para 1(i) (emphasis added). 88 Audit of the African Union (n 69) 87 [237]. 89 Ibid 90 Makinda, Okumu and Mickler (n 22) 51–2. 91 Ibid 52. 92 Lilian Chenwi, ‘Successes of African Human Rights Court Undermined by

Resistance from States’, The Conversation (online, 1 September 2021) <https:// theconversation.com/successes-of-african-human-rights-court-undermined-byresistance-from-states-166454>. 93 There is also no agreed de nition of sovereignty in Africa. For example, in Uganda, sovereignty resides in the president who has ruled since the mid-1980s and has changed the Constitution unilaterally several times, while in neighbouring Kenya, sovereignty ‘belongs to the people’ who ‘may exercise their sovereign power either directly or through their democratically elected representatives’: see Constitution of Kenya 2010 arts 1(1)–(2). On Uganda, see

‘Uganda: 35 Years under President Yoweri Museveni’, The East Africa (online, 12

January 2021) <https://www.theeastafrican.co.ke/tea/news/east-africa/uganda35-years-under-president-yoweri-museveni-3254234>; Peter Bouckaert, Hostile to Democracy: The Movement System and Political Repression in Uganda (Human Rights Watch, 1999) 46–51. 94 Francis M Deng et al, Sovereignty as Responsibility: Conflict Management in

Africa (Brookings Institution, 1996) 1. 95 Ibid. 96 See Constitutive Act (n 5) arts 9, 13. See also Makinda, Okumu and Mickler (n 22) 43–8. 97 For more on this point, see Nicholas J Wheeler, Saving Strangers: Humanitarian

Intervention in International Society (Oxford University Press, 2000); Samuel M

Makinda, ‘Why South Sudan’s Problems Stem from the Abuse of Sovereignty:

The Case for Co-Governance’ (2017) 38(1) Australasian Review of African

Studies 8. 98 See ‘African Peer Review Mechanism (APRM)’ (n 7). 99 African Union, ‘More African States Join the Peer-to-Peer Governance Review

Mechanism, a Re ection of Commitment to Change’ (Press Release, 8 February 2020) <https://au.int/sw/node/38100>; Kapinga-Yvette Ngandu, ‘Positioning the

APRM as an Early Warning Tool for Con ict Prevention’ (May 2020) Governance

Link. 100Steve Ouma Akoth, Open Society Initiative for East Africa, The APRM Process in Kenya: A Pathway to a New State? (Report, March 2007) 1 <https:// www.opensocietyfoundations.org/uploads/609793ca-d475-4108-82828a3ab2e931c9/aprm_20070823.pdf>. 101 Moira Fratta, ‘Post-Electoral Violence in Kenya: More than 1000 People Killed and 300,000 Displaced’, Relief Web (Web Page, 28 February 2008) <https:// reliefweb.int/report/kenya/post-electoral-violence-kenya-more-1000-peoplekilled-and-300000-displaced>. 102 African Peer Review Mechanism, Country Review Report of the Republic of South Africa (Report, 2007) 8 [3.21] <https:// www.aprmtoolkit.saiia.org.za/documents/country-reports-andexper/97-atkt-south-africa-arpm-country-review-report-2007-en/ le>. 103 Human Rights Watch, World Report 2009: Events of 2008 (Report, 2009) 115–16 <https://www.hrw.org/sites/default/ les/reports/wr2009_web_1.pdf>. 104 For vital information on how the system operates, see ‘African Peer Review

Mechanism (APRM)’ (n 7). 105 Ibid. 106Ibid. 107For a useful assessment of the African Peer Review Mechanism, see Yarik Turianskyi, ‘African Peer Review: Progress Is

Being Made, but There Are Problems’, The Conversation (online, 13 March 2019) <https://theconversation.com/ african-peer-review-progress-is-being-made-but-there-are-problems-113048>. 108 Jeune Afrique, ‘African Union: Theft, Intimidation, Nepotism Allegations against

AU Body’, The Africa Report (online, 19 November 2020) <https://www. theafricareport.com/51166/african-union-explosive-whistleblower-report-onaprm-details-theft-and-intimidation/>. 109 See Samuel M Makinda, ‘The Global Covenant as an Evolving Institution’ (2002) 6(1) The Journal of International Human Rights 113.