The role of civil society in improving compliance with the decisions of the African human rights supervisory mechanisms

Abstract

The African human rights system (AHRS) has existed for over three decades. To ensure effective protection of human rights of the African people, three supervisory mechanisms have been established with the mandate to receive complaints from victims of rights violations and issue decisions requesting violating states to address violations and to avoid further re-occurrence. These mechanisms are: the African Commission on Human and Peoples’ Rights (Commission), the African Court on Human and Peoples’ Rights (Court) and the African Committee of Experts on the Rights and Welfare of the Child (Committee). Since their inception, these mechanisms have issued a series of recommendations and decisions that aim to offer redress to victims of human rights violations and to prevent future violations in Africa. However, the attitude of member states towards compliance or implementation with the decisions of the supervisory bodies has been relatively poor. In order to improve compliance or implementation and, by extension, the effectiveness of the system, it became necessary to understand factors that trigger compliance with a view to amplifying those factors. However, in the African context, it is much more important to know where the balance of pressure for compliance with decisions of the AHRS currently lie as between international and national (domestic) factors. The ultimate aim is to find out which mechanisms have a better link with compliance – the domestic or external. In view of the above, the study finds that apart from the political will or commitment of member states, NGOs/CSOs interventions have arguably become one of the mediums by which compliance is being driven in the African system. The thesis further finds that in pressuring member state for compliance, NGOs often resort to ‘naming’ and ‘shaming’ the violating member state. The probable effect of this strategy often attracts the concerns of regional and western stakeholders who may then raise international costs of non-compliance against the target state. These costs could be in the form of sanctions, embargoes, aid reductions and so on. This therefore implies that in the African system, instances of compliance have often resulted from NGOs/CSOs exploring or mobilizing external opinion and forces as sources of pressure for compliance. It must be noted that while the above compliance measures have hitherto been somewhat successful in influencing the political will of African states for compliance, thereby resulting in some level of compliance, geopolitical and other related factors have arguably whittle down the weight of their influence. Thus, the AHRS which depends almost exclusively on these factors (external mechanisms) for compliance has remained a cause for concern owing to the growing challenges of non-compliance with human rights decisions and by extension, the ineffectiveness of the system. This lingering (or even growing) concern of non-compliance has inspired this thesis to investigate the need for other (alternative) sources of potential pressure for compliance in order to complement the current mechanisms and the follow-up pattern by which compliance is being driven. This is necessary owing to the fact that if international pressure for compliance is waning, identifying domestic sources of pressure and increasing the domestic or internal legitimacy of sources of pressure for compliance might be one such alternative. This aligns with the major claim in this thesis which is framed as a hypothesis that state compliance with regional human rights decisions is likely to improve if domestic constituencies in state parties under the AHRS are properly engaged to raise the domestic cost of non-compliance. Drawing from the above, the thesis examines the possibility of how CS engagement can be explored to raise domestic cost of non-compliance against a non-compliant or violating state. In view of this, the study identifies and discusses two models of engagement: direct engagement through protest, and indirect engagement through elections or electioneering processes. In addition, the study further identifies (but not discussed) other forms of direct civic engagement that could equally be explored as potential domestic tools to stimulate states’ incentive towards compliance. These includes strike, boycott, lobby, impeachment, recalling and referendum. As part of the findings in this study, the chances of improving compliance is likely when the wider domestic communities in African states are integrated and engaged to be part of the affairs of the AHRS especially in raising electoral and other domestic costs of non-compliance. With respect to the effect of indirect CS engagement – through elections, the study finds that the voting public (CS) can raise electoral costs against elected politicians in government. This then implies that member state compliance can be improved when the voting public is able to raise electoral cost that threatens incumbent politicians seeking re-election. In other words, voters can exercise electoral leverages to stimulate compliance from state actors on a wide range of issues which includes the question of respect for the rule of law and by extension, compliance with human rights decisions. Therefore, to avoid the electoral cost of losing elections and political power, elected politicians seeking re-election will likely succumb to such political pressure to avoid any potential attendant electoral costs. However, as may be applicable in the African context, the possibility that raising electoral and other domestic costs will attract better compliance is contingent on some variables: (a) the extent of voters’ awareness and the value placed on the particular decision for which voters are expected to raise electoral cost for compliance (b) if significant numbers of citizens’with voting capacity are concerned about human rights and compliance in relative proportion (or even more) with other societal needs or matters of general concerns (c) when human rights and issues of non-compliance are factored as part of key electoral issues that voters consider in deciding the choices of candidates to be voted for, or (d) when human rights and compliance are considered as one of the reasons or grounds for citizens’ direct civil actions. In all, the motivation for this thesis was based on the claim that the rate of states parties’ compliance with decisions from the regional human rights bodies has been consistently low and when there has been compliance, NGOs/CSOs and other stakeholders have often times prioritise their lobbying, advocacy and follow-up strategies in leaveraging on external constituencies for intervention instead of engaging internal forces to pressure for compliance. Thus, the study suggests for a shift of focus from mobilisation of external forces to domestic engagement of internal constituencies. Therefore, by setting out several arguments to justify the hypothesis that compliance could be improved when certain domestic measures within the internal spheres of state parties are engaged, the thesis presents a unique roadmap for a domestically-based approach (direct and indirect citizens’ actions) in cajoling member states’ compliance under the AHRS. This is the novelty that this study has contributed to body of scholarship particularly with respect to compliance with decisions of the African regional human rights supervisory bodies.