BACKGROUND

 

The Republic of Egypt has proposed an agenda item to be discussed at the Executive Council of the African Union (AU) Summit which will be held in Kampala, Uganda from 22 to 23 July 2010. The item proposed by Egypt is titled “Promotion of Co-operation, Dialogue and Respect for Diversity in the field of Human Rights.”

 

While the resolution proposed under this agenda item purports to outline a constructive approach, involving cooperation, dialogue and respect for diversity, there are serious concerns that the resolution would in fact seek to restrict discussion of human rights issues, limit diversity, and undermine the principles of universality and non-discrimination.

 

CONCERNS ABOUT THE PROPOSED RESOLUTION

 

We understand that the proposed resolution seeks to limit protection to only those human rights which are “universally recognised” and calls on AU member States to “reject the divisive nature of efforts seeking to impose controversial concepts, falling outside the internationally and regional agreed legal framework on human rights, in particular regarding social and value systems and matters. This would reaffirm our commitment to preserving the universality of human rights and respecting diversity.” This stance is in direct contradiction with the spirit of co-operation and dialogue that the Republic of Egypt proposes. Many issues are now accepted as falling within the international human rights framework whereas at one stage they were deemed controversial.

 

“Dialogue and co-operation”

 

It is in the spirit of dialogue and cooperation to foster open respectful discussion on all human rights issues, including those which are sensitive and even potentially divisive. Dialogue is not furthered by seeking to shut down debate, or rejecting discussion of concepts deemed controversial.

 

Whilst it is crucial that other regions need to pay equal or increased attention to African priorities (such as issues of development, economic, social and cultural rights, racism, an increase in xenophobia, racial and religious stereotyping in the West, and restrictive immigration policies, among others), it is equally important that AU member States also keep an open mind to continued discussion of all human rights issues, without refusing to engage with issues that they may deem as falling outside Africa's vision of human rights. It is only through such mutual dialogue and cooperation that true understanding of diverse regional perspectives can be enhanced, rather than retreating into entrenched regional positions.

 

 

 

“Respect for diversity”

 

Africa has always been committed to pluralism and diversity. There are numerous perspectives across such a vast and diverse continent, which are enriched by healthy exchanges of views, even where there are differences. In fact, these diverse views contribute to the mutual enrichment of people and nations as reaffirmed by Article 5 of the African Charter on Cultural Renaissance . The suggestion that there is one static monolithic African vision needs to be rejected. We must continue to embrace pluralism and diversity.

 

The document that constitutes an embodiment of our aspirations as African people is enshrined in the African Charter on Human and Peoples’ Rights. The Charter provides us with values that we can advance in efforts to strengthen the Human Rights Council. The Charter affirms the notion of peoples’ rights and the duties that we as individuals owe to each other. Article 28 is the bedrock of the Charter’s commitment to respect for diversity. It states that “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”.

 

It is important to be mindful that tradition and culture and other “social and value systems” have frequently been invoked to restrict human rights. We have seen these in debates on female genital mutilation and marital rape, among others. Claims for cultural diversity often challenge the very idea of human rights by asserting the privilege of culture or national sovereignty over recognition of each person as human. We must therefore be willing to engage in critical discussions around cultural diversity without allowing such discussions to detract from our overarching commitment to universal human rights for all.

 

The commitment to respecting the universality of human rights and the respect for diversity are not two mutually exclusive concepts. In fact, they are mutually reinforcing. It is a therefore a false dichotomy to seek to make the two separate. As pointed out by a group of UN experts recently:

 

“Cultural diversity, however, can only thrive in an environment that safeguards fundamental freedoms and human rights, which are universal, indivisible, interconnected and interdependent. No one may invoke cultural diversity as an excuse to infringe on human rights guaranteed by international law or limit their scope, nor should cultural diversity be taken to support segregation and harmful traditional practices which, in the name of culture, seek to sanctify differences that run counter to the universality, indivisibility and interdependence of human rights” .

 

 

“Universally recognised rights”

 

It is important that protection not be restricted to only those rights which are "universally recognised". This term lacks clarity and is not referenced in the African Charter which only mentions universality more broadly. Many African human rights priorities are not "universally recognised" by other regions, and human rights must be available to all, not just those we choose to recognise. The history of human rights, in Africa and elsewhere around the world, is a history of seeking equal protection for all, including those whose rights are often unrecognised by the authorities.

 

An all-encompassing view of equality and non-discrimination is critical in Africa in order to address current threats to human rights. Similarly, the understanding that individuals do not only suffer discrimination on the basis of expressly prohibited grounds but that discrimination can be based on non-enumerated grounds is equally important. Grounds for discrimination, whether expressly prohibited or not can intersect to enhance vulnerability. We continue to bear witness to how ethnicity is used in times of conflict, xenophobia in relation to citizenship and migration, and the lack of substantive progress on women's rights due to the failure to address the structural features that lead to continuing discrimination. We are also seeing emerging grounds for protection like HIV status and child-headed households, among others.

 

The African Charter grants rights to everyone, without distinction. The formulation that “every individual” is entitled to the rights in the Charter is repeated in articles 2, 3, 5, 6, 7, 9, 10, 11, 12, 15, 16 and 17. Article 8 provides that the freedom of conscience of “no one” may be restricted; and article 13 provides for the rights of “every citizen”.

 

Article 2 of the African Charter underlines that the rights in the Charter may be invoked without discrimination. It provides that individuals are entitled to the rights under the African Charter “without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or other status”. The use of the phrases “of any kind”, “such as” and “or other status” clearly shows that the list of grounds for non-discrimination is not exhaustive.

 

While many African countries have sought to give substance to the Charter's equality provisions through their Constitutions and related legislation, addressing inequality continues to pose one of the biggest legal protection and economic policy challenges to African governments. This is often evident in the context of addressing root causes of conflict.

 

CONCLUSION

 

African civil society fully seeks to engage in both regional and international processes, including the UN review of the Human Rights Council and welcomes the opportunity provided to engage with the AU regional Human Rights system on the same, while urging concrete mechanisms for such engagement.

 

The proposed resolution should not seek to prematurely constrain the African Union’s interpretation of the Charter. The ACHPR is the organ tasked with interpreting the Charter and the executive body of the AU should not interfere with this process. Any assumed "African vision" cannot offer less protection than UN mechanisms already provide. Article 60 of the Charter is clear that the ACHPR “will draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.”

 

We therefore urge African Union States to encourage Egypt not to advance a resolution that is likely to be polarising and divisive, and not to endorse any resolution that would limit diversity, restrict discussion of sensitive issues, or undermine the principles of universality and non-discrimination that underpin both the African Charter on Human and Peoples’ Rights and international human rights instruments.

 

Signed

 

1. Khaled Ali, Egyptian Centre for Economic and Social Rights (ECESR), Egypt

2. Hisham Mubarak, Law Centre, Egypt

3. Cairo Institute for Human Rights Studies (CIHRS), Egypt

4. Steave Nemande, Alternatives-Cameroun

5. Egyptian Initiative for Personal Rights (EIPR)

6. Cairo Institute for Human Rights Studies (CIHRS), Egypt

7. Association for Freedom of Thought and Expression, Egypt

8. The Coalition on Human Rights and Constitutional Law, Faculty of Law, Makerere University, Uganda

9. Phumi Mtetwa, Lesbian and Gay Equality Project, South Africa

10. Wendy Isaack, People Opposing Women Abuse (POWA), South Africa

11. Noel Kututwa, Amnesty International , South Africa

12. Muthoni Wanyeki, Kenya Human Rights Commission (KHRC), Kenya

13. Monica Mbaru, Africa Office – International Gay and Lesbian Human Rights Coalition(IGLHRC), South Africa

14. Dr. Ben Sihanya, Dean of Law, University of Nairobi, Kenya

15. Prof. Githu Muigai, UN special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Kenya

16. Commissioner Mute, Kenya National Commission on Human Rights (KNCHR), Kenya

17. David Kuria, Gay and Lesbian Coalition of Kenya (GALCK), Kenya