Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-13T07:17:46.677Z Has data issue: false hasContentIssue false
  • English
  • Français

The Meaning of “People” in the African Charter on Human and Peoples’ Rights

Published online by Cambridge University Press:  27 February 2017

Richard N. Kiwanuka
Richard N. Kiwanuka*
Affiliation:
University of Western Australia, Perth
Get access Rights & Permissions [Opens in a new window]

Extract

The African Charter on Human and Peoples’ Rights, also known as the Banjul Charter on Human and Peoples’ Rights, was adopted by the 18th Assembly of Heads of State and Government of the Organization of African Unity (OAU), held in Nairobi in June 1981. Contrary to some expectations, the Charter stayed in limbo for only 5 years. It entered into force on October 21, 1986, after the deposit of the 26th instrument of ratification, the number required by its Article 63(3). By April 16, 1987, there were 33 states parties to the Charter, which makes it the largest regional human rights system in existence.

Type
Notes and Comments
Information
American Journal of International Law , Volume 82 , Issue 1 , January 1988 , pp. 80 - 101
Copyright
Copyright © American Society of International Law 1988

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 ILM 59 (1982), 27 Rev. Int’l Comm’n Jurists 76 (1981) [hereinafter Banjul Charter]. For views on general aspects of the Charter, see Commission to Study the Organization of Peace, Regional Protection of Human Rights in Africa (1980); Eze, O. C Human Rights in Africa: Some Selected Problems (1984)Google Scholar; Rembe, N. S. Africa and Regional Protection of Human Rights (1985)Google Scholar; Human Rights and Development in Africa (C. E. Welch & R. I. Meltzer eds., 1984); Kannyo, The Banjul Charter on Human and Peoples’ Rights: Genesis and Political Background, in Welch & Meltzer (eds.), supra, at 128; D’Sa, Human and Peoples’ Rights: Distinctive Features of the African Charter, 29 J. Afr. L. 72 (1985); Gittleman, The African Charter on Human and Peoples’ Rights: A Legal Analysis, 22 VA. J. Int’l L. 667 (1982)Google Scholar; Mumba, Prospects for Regional Protection of Human Rights in Africa, Holdsworth L. Rev. 101 (1982)Google Scholar; Okere, The Protection of Human Rights in Africa and the African Charter on Human and Peoples’ Rights: Comparative Analysis with the European and American Systems, 6 Hum. Rts. Q. 141 (1984)Google Scholar; Turack, The African Charter on Human and Peoples’ Rights: Some Preliminary Thoughts, 17 Akron L. Rev. 365(1984)Google Scholar; Umozurike, The African Charter on Human and Peoples’ Rights, 77 AJIL 103 (1983)Google Scholar. See also I. Diaite, La Notion de peuple de l’application de la Charte africaine des droits de l’homme et des peuples (paper presented at the Symposium International sur les Droits de l’Homme et des Peuples, Dakar, Oct. 25–30, 1982).

2 Actually, this was the title finally agreed upon in honor of the drafting history of the Charter and to avoid confusing it with the 1963 Charter of the Organization of African Unity. However, the original title continues in use, even within OAU circles. See Gittleman, supra note 1, at 667. In this paper, the shorthand form Banjul Charter will be used.

3 See, e.g., Gittleman, , The African Commission on Human and Peoples’ Rights: Prospects and Procedures, in Guide to International Human Rights Practice 153, 160 (H. Hannum ed. 1984)CrossRefGoogle Scholar; Ojo, & Sesay, The O.A.U. and Human Rights: Prospects for the 1980s and Beyond, 8 Hum. Rts. Q. 89, 101 (1986)CrossRefGoogle Scholar.

4 By contrast, the International Human Rights Covenants of 1966 (International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights, annexed to GA Res. 2200 (XXI) (Dec. 19, 1966)) took 10 years to enter into force; the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 took 3 years; and the American Convention on Human Rights of 1969 took 10 years.

5 Information furnished by Adwoa Coleman-Tommy, an OAU legal officer, in a letter to the present writer dated Apr. 16, 1987.

6 The European Convention has 21 parties, while the American system covers 19 states.

7 See, e.g., Virally, Panorama du droit international contemporain: Cours général de droit international public, 183 Recueil des Cours 9, 57 (1983 V)Google Scholar.

8 Brownlie, The Rights of Peoples in Modern International Law, 9 Bull. Austl. Soc’Y Legal Phil, [hereinafter Bull. Austl. Soc’y] 104, 107 (1985)Google Scholar.

9 N. S. Rembe, supra note 1, at 122. See, e.g., common Art. 1 of the 1966 Human Rights Covenants, supra note 4; GA Res. 1514 (XV) (Dec. 14, 1960); GA Res. 1803 (XVII) (Dec. 14, 1962); GA Res. 2625 (XXV) (Oct. 24, 1970).

10 For the text, see IODC Bull., September 1976, at 47 [International Documentation Center]; Falk, R. Human Rights and State Sovereignty 225 (1981)Google Scholar. For discussion of the declaration, see Pour un Droit des Peuples: Essais Sur La Déclaration D’Alger (A. Cassese & F. Jouve eds., 1981); Rigaux, The Algiers Declaration of the Rights of Peoples, in UN Law/Fundamental Rights: Two Topics in International Law 211 (A. Cassese ed. 1979)Google Scholar; Falk, The Algiers Declaration of the Rights of People and the Struggle for Human Rights, in R. Falk, supra, at 185.

11 Rapporteur’s Report, OAU Doc. CM/1149 (XXXVII), Ann. 1, at 4, para. 13 (1981), quoted in N.S. Rembe, supra note 1, at 112. This is not the only instance where an international instrument intentionally eschews defining a crucial term. For example, the International Law Commission during its work on the draft Declaration on the Rights and Duties of States declined to define what a state was. The Commission did not believe that any useful purpose would be served by such a definition and preferred to allow the word to be interpreted according to international practice. See 1949 Y.B. Int’l L. Comm’n 289; Lachs, Development and General Trends of International Law in Our Time, 169 Recueil des Cours 2, 29 (1980 IV)Google Scholar.

12 Okere, supra note 1, at 148.

13 Rapporteur’s Report, supra note 11, at 3, para. 10, quoted in N. S. Rembe, supra note 1, at 121.

14 See M’Baye, Human Rights in Africa, in The International Dimensions of Human Rights 584 (K. Vasak ed. 1982)Google Scholar, who states:

The European conception of human rights, that is to say, a set of principles whose essential purpose is to be invoked by the individual against the group with which he is in conflict, is not met in traditional Africa. In Africa, the individual, completely taken over by the archetype of the totem, the common ancestor or the protective genius, merges into the group.

Id. at 588–89.

15 Cf. Howard, Is There an African Concept of Human Rights?, in Foreign Policy and Human Rights II (R.J. Vincent ed. 1985)Google Scholar; University of Toronto Development Studies Programme, Working Paper No. A:8 (1983).

16 See Banjul Charter, supra note 1. The traditionalist approach must be submitted to rigid scrutiny, as many traditions are either of questionable relevance and utility or plainly oppressive (especially to women). The words of A. M. Babu, a leading African socialist activist, are worth noting:

The politics and ideology of the past were the concentrated expression of their economics, the economics of the past, and have no relevance to the economics of the present or the economics of the future. . . .

If those early forms of social organization also contained elements of democracy, it was the democracy of that particular time, totally unfitted to the democratic practice of man in the present epoch. To say that an African can learn democracy simply by looking backward to see how our great-grandparents behaved is not only meaningless but downright reactionary.

Babu, A. M. African Socialism or Socialist Africa? 58 (1981)Google Scholar.

17 See supra note 10.

18 Falk, supra note 10, at 189–90 (emphasis in original).

19 Rich, The Right to Development: A Right of Peoples?, 9 Bull. Austl. Soc’y 120, 123 (1985)Google Scholar.

20 Id. at 124.

21 K. Vasak, For the Third Generation of Human Rights: The Rights of Solidarity, paras. 9–10 (Inaugural Lecture, 10th Study Session of the International Institute of Human Rights, Strasbourg, July 1979, mimeo.), quoted in Marks, infra, at 441. For critical appraisals of the notion of a third generation of human rights, see Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?, 29 Neth. Int’l L. Rev. 307 (1982)Google Scholar; Marks, Emerging Human Rights: A New Generation for the 1980s?, 33 Rutgers L. Rev. 435 (1981)Google Scholar.

22 Taperrel, Comment, 9 Bull. Austl. Soc’y 160 (1985). Cf. Crawford, infra note 69.

23 Sohn, The New International Law: Protection of the Rights of Individuals Rather Than Slates, 32 Am. U.L. Rev. 1, 48 (1982)Google Scholar. See also Espiell, Gros Self-Determination and Jus Cogens, in A. Cassese (ed.), supra note 10, at 167–73 Google Scholar.

24 Kamenka, Human Rights, Peoples’ Rights, 9 Bull. Austl. Soc’y 148, 158 (1985)Google Scholar.

25 See, e.g., Final Act of the International Conference on Human Rights (Proclamation of Tehran), May 13, 1968, UN Doc. A/CONF.32/41 (1968); GA Res. 32/130 (Dec. 16, 1977); Jhabvala, On Human Rights in the Socio-Economic Context, 31 Neth. Int’l L. Rev. 149 (1984)Google Scholar; Sohn, supra note 22, at 62–64.

26 Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int’l & Comp. L.Q. 102, 104 (1976)Google Scholar.

27 Brownlie, supra note 8, at 107–08.

28 A. Cristescu, The Right to Self-Determination, Historical and Current Development on The Basis of United Nations Instruments, para. 279, UN Doc. E/CN.4/Sub.2/404/Rev.1, UN Sales No. E.80.XIV.3 (1981); Ermacora, , The Protection of Minorities Before the United Nations, 182 Recueil Des Cours 247, 327 (1983 IV)Google Scholar.

29 Article 20 of the Charter, supra note 1, reads as follows:

1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.

3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

30 The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), supra note 9, when dealing with the principle of equal rights and self-determination of peoples, provides, inter alia:

Nothing . . . shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

See further para. 6, Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), supra note 9. The UN Secretary-General, commenting on the Biafran crisis, stated: “So, as far as the question of secession of a particular section of a Member State is concerned, . . . [a]s an international organization, the United Nations has never accepted . . . and I do not believe it will ever accept the principle of secession of a part of its Member State.” UN Monthly Chron., February 1970, at 36. On UN law and practice, see generally M. Pomerance, Self-Determination in Law and Practice: the New Doctrine in the United Nations (1982); Emerson, Self-Determination, 65 AJIL 459, 464 (1971)Google Scholar; A. Cristescu, supra note 28; Swan, Self-Determination and the United Nations Charter, 22 Indian J. Int’l L. 264 (1982); Rigo-Sureda, A. The Evolution of the Right to Self-Determination: A Study of United Nations Practice (1973)Google Scholar.

31 See generally Ijalaye, Was “Biafra” at any Time a State in International Law?, 65 AJIL 551 (1971)Google Scholar; Nayar, Self-Determination Beyond the Colonial Context: Biafra in Retrospect, 10 Tex. Int’l L.J. 321 (1975)Google Scholar; Akinyemi, The Organization of African Unity and the Concept of Non-interference in Internal Affairs of Member-States, 46 Brit. Y.B. Int’l L. 393 (1972–73)Google Scholar; Ginther, Re-defining International Law from the Point of View of Decolonisation and Development of African Regionalism, 26 J. Afr. L. 49(1982)Google Scholar; Kamanu, Secession and Self-Determination in Africa: An O.A.U. Dilemma, 12 J. Mod. Afr. Stud. 355 (1974)Google Scholar; Blay, Changing African Perspectives on the Right to Self-Determination in the Wake of the Banjul Charter on Human and Peoples’ Rights, 29 J. Afr. L. 147, 149–55 (1985)Google Scholar; OAU Charter arts. 2(1)(a) and (c), and 3(2), (3) and (5); OAU Res. AHG/16/1 (1964).

OAU Resolution AHG/16/1 (1964) provides, inter alia, that the Assembly of Heads of State and Government “declares that all Member States pledge themselves to respect the frontiers existing on the achievement of national independence.” See 1st Ordinary Session of the Assembly of Heads of State and Government, July 17–21, 1964, reprinted in I. Brownlie, Basic Documents on African Affairs 360–61 (1971).

32 See, e.g., Angola Const, art. 4: “The People’s Republic of Angola shall be a unitary and indivisible State whose inviolable and inalienable territory shall be that defined by the present geographical limits of Angola, and any attempt at separatism or the dismembering of its territory shall be vigorously combated.” See further Senegal Const, art. 2; Gabon Const. art. 4; Egypt Const, art. 3; Mali Const, art. 2; and Art. 1, Djibouti Const. Law No. 1 (LR/77–001, 1977). For these and other constitutions cited infra, see Constitutions of the Countries of the World (A. Blaustein & G. Flanz eds.).

33 Cf. Nanda, Self-Determination in International Law: The Tragic Tale of Two Cities—Islamabad (West Pakistan) and Dacca (East Pakistan), 66 AJIL 321 (1972). See further Nayar, Self-Determination: The Bangladesh Experience, 7 Hum. Rts. J. 231 (1974)Google Scholar; Turp, Le Droit de sécéssion en droit international public, 20 Can. Y.B. Int’l L. 24 (1982)Google Scholar.

34 Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, 16 Va. J. Int’l L. 779 (1976)Google Scholar. See and compare generally Amankwah, Self-Determination in the Spanish Sahara: A Credibility Gap in the United Nations’ Practice and Procedure in the Decolonisation Process, 14 Comp. & Int’l L.J. Southern Afr. 34 (1981)Google Scholar. An overview of the Eritrean problem is given in Medhin, Eritrea: Background to Revolution, 28 Monthly Rev. 29 (1976)Google Scholar.

35 For a fuller discussion of this issue, see Richardson, Self-Determination, International Law and the South African Bantustan Policy, 17 Colum. J. Transnat’l L. 185(1978)Google Scholar; Swan, Self-Determination Pretoria Style: The Case of Transkei, 3 Whittier L. Rev. 475 (1981)Google Scholar; Norman, The Transkei: South Africa’s Illegitimate Child, 12 New Eng. L. Rev. 585 (1977)Google Scholar. Cf. Dekieffer, & Hartquist, Transkei: A Legitimate Birth, 13 New Eng. L. Rev. 428 (1978)Google Scholar; Booysen, The South African Homelands and Their Capacity to Conclude Treaties, 8 S. Afr. Y.B. Int’l L. 58 (1982)Google Scholar.

36 See Nanda, supra note 33; see also Nanda, Self-Determination under International Law: Validity of Claims to Secede, 13 Case W. Res. J. Int’l L. 257 (1981)Google Scholar; Chen, Self-Determination: An Important Dimension of the Demand for Freedom, 75 ASIL Proc. 88 (1981)Google Scholar.

37 Nanda, supra note 33, at 328.

38 The lack of serious involvement has been attributed by Malcolm Shaw, inter alia, to “the important status enjoyed in Africa by Ethiopia, at least prior to the revolution, Soviet and Cuban involvement and the complicating Arab dimension, coupled with the anti-secessionist stance adopted by the vast majority of African States.” Shaw, Dispute-Settlement in Africa, 37 Y.B. World Aff. 149, 158 (1983)Google Scholar.

39 Western Sahara, 1975 ICJ Rep. 12, 67 (Advisory Opinion of Oct. 16); Shaw, The Western Sahara Case, 49 Brit. Y.B. Int’l L. 118 (1978)Google Scholar.

40 Franck, The Stealing of the Sahara, 70 AJIL 694 (1976)Google Scholar; Shaw, supra note 38, at 160.

41 Cf. Blay, supra note 31, at 156–57.

42 Id. at 157.

43 Cf. Suter, Address, in Human Rights for Aboriginal People in the 1980s, at 37 (G. Nettheim ed. 1983):

The League of Nations paid particular attention to the protection of minorities. It set standards which we are only now beginning to equal, such as the right of individuals to petition an international body regarding the alleged violation of their rights by their government. This concern arose partly from the belief that aggrieved minority populations are a potential cause of international unrest. . . . The UN was given the same task but it decided not to deal quite so much specifically with minorities as such but to improve the general economic and social well-being of all people. This neatly side-stepped the fact that almost all nations have problems with minority populations and avoided head-on collisions between the UN bodies and governments which are sensitive about minority questions.

44 Ermacora, supra note 28, at 268–81.

45 F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, UN Sales No. E.78.XIV.1 (1979), quoted in Ermacora, supra note 28, at 276. Jules Deschenes, in a recent seminal paper, proposed the following definition of “minority”:

A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact or in law.

Deschênes, Promotion, Protection and Restoration of Human Rights at the National, Regional and International Levels: Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1985/31, para. 181, at 30.

46 Ermacora, supra note 28, at 327.

47 Id. at 298–303. See also GA Res. 1514 (XV), supra note 30. For comments on a treaty option (like New Zealand’s Waitangi Treaty of 1840) in the search for solutions to problems facing Aborigines in Australia, see We Call for A Treaty (J. Wright ed. 1985); “it’s Coming Yet . . . “: An Aboriginal Treaty Within Australia Between Australians (S. Harris ed. 1979). See generally Barsh, Indigenous Peoples: An Emerging Object of International Law, 80 AJIL 369 (1986)Google Scholar.

48 Pierre Carignan made the following observations:

Minority rights are a case where collective rights are given a sub-collectivity with no legal personality. In this case, rights are given individuals within the minority. They are, however, not given them ut singuli, but only as members of the collectivity. In this sense, we can characterize minority rights simply as being “more collective than individual”: individuals are advantaged but only as individual members of the collectivity. Another aspect also makes minority rights distinct: no longer are all members of the collectivity active subjects of the right. For this reason, at one and the same time, while one member’s rights may b e respected another’s may be denied.

Carignan, Address, in Report of the First Seminar on Human Rights Organized by the Human Rights Research and Education Centre, University of Ottawa, at 2 (1985). See further Rechetov, Minority Rights in Contemporary International Law, 31 Revue Hellénique De Droit International 154 (1978)Google Scholar; Popovski, Les Droits des minorités ethniques, 26 Questions Actuelles du Socialisme 62 (1976)Google Scholar.

49 See generally Sornarajah, Internal Colonialism and Humanitarian Intervention, 11 Ga. J. Int’l & Comp. L. 45 (1981)Google Scholar; Cassese, Political Self-Determination—Old Concepts and New Developments, in A. Cassese (ed.), supra note 10, at 137 Google Scholar.

50 Sohn, supra note 23, at 50.

51 Ermacora, supra note 28, at 328.

52 H. Gros Espiell, the Right to Self-Determination: Implementation of United Nations Resolutions, para. 56, UN Doc. E/CN.4/Sub.2/405/Rev.l, UN Sales No. E.79.XIV.5 (1980).

53 Ermacora, supra note 28, at 328.

54 Sohn, supra note 23, at 49.

55 Article 27 of the Covenant, supra note 4, states: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” See further Provisions of International Instruments Relevant to the Problem of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities, Note by the Secretary-General, UN Doc. E/CN.4/Sub.2/ L.735 (1980); Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, in Völkerrecht als Rechtsordnung—Internationale Gerichtsbarkeit— Menschenrechte: Festschrift Für Hermann Mosler 949 (1983)Google Scholar; Montigny, de L’O.N.U. el la protection Internationale de minorités depuis 1945, 13 Revue Juridique Thémis 389 (1978)Google Scholar; Capotorti, The Protection of Minorities under Multilateral Agreements on Human Rights, 2 Italian Y.B. Int’l L. 3 (1976)Google Scholar; Szabo, Les Minorites et les droits de I’homme, 23 Acta Juridica 1 (1981)Google Scholar; Kelly, National Minorities in International Law, 31 Denver J. Int’l L. 253 (1973)Google Scholar; Smith, Ethnic Identity and World Order, 12 J. Int’l Stud. 149 (1983)Google Scholar.

56 See also Art. 9, Djibouti Const. Law No. 2 (LR/77–002, 1977).

57 These two articles provide as follows:

Article 21

1. All peoples shall freely dispose of their wealth and natural resources. The right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.

4. States Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

5. States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources.

Article 22

1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

58 Bedjaoui, , The Right to Development and the Jus Cogens, Lesotho L.J., No. 2, 1986, at 93, 98 Google Scholar (emphasis in original).

59 Id. at 99.

60 See also Liberia Const, art. 22(b); Angola Const, art. 11; and Sudan Const, art. 37.

61 See, e.g., Nigeria Const, art. 40(3).

62 Article 19 provides, in pertinent part: “State property is the property of the People as a whole. . . . Mineral resources, waters and forests, uncultivated lands and other natural resources that the law declares to be State property shall be the property of the People as a whole.” Benin Const, art. 19.

63 Congo Const, art. 30.

64 Egypt Const, art. 24.

65 Art. 2, GA Res. 3281 (XXIX) (Dec. 12, 1974). See also Art. 4(e), Declaration on the Establishment of a New International Economic Order, GA Res. 3201 (S-VI) (May 1, 1974).

66 Rich, supra note 19, at 125.

67 Falk, supra note 10, at 189–90.

68 Gutto, Responsibility and Accountability of States, Transnational Corporations and Individuals in the Field of Human Rights to Social Development: A Critique, in Third World Legal Studies Association, Human Rights and Development 175, 180–81 (1984)Google Scholar (emphasis in original).

69 See generally Crawford, The Rights of Peoples: “Peoples” or “Governments”?, 9 Bull. Austl. Soc’y 136 (1985)Google Scholar.

70 See, e.g., Gran, G. Development by People 137–38 (1983)Google Scholar; Gran, G. Zaire: The Political Economy of Underdevelopment (1979)Google Scholar.

71 An observer for the International Commission of Jurists at the trial of Macías Nguema recorded:

The funds of the State had become totally confused with those of Macías.. . . Macías, as Head of State, took the national treasury to his palace of Nzeng Ayong . . . in the country near the border with Gabon. He administered the funds of the State from his house and sometimes from Bata—for he had not ventured into the capital for five years—without consulting either the bank or the ministry concerned.

Artucio, A. The Trial of Macías in Equatorial Guinea: The Story of A Dictatorship 15 (International Commission of Jurists/International University Exchange Fund, 1979)Google Scholar.

72 See, e.g., A. Tévoédjrè, Human Rights and Democracy in Africa 13 (UN Univ. Annual Lecture Series, No. 2, 1985):

In essence, politics in African countries became a very lucrative business, driving the ruling classes to hold on to power and opponents to strive by every possible means, including unconstitutional ones, to come into office. In the process, the voice of the people at the grass-roots level in the decision-making machinery of many African countries (the very essence of democracy) got drowned in a flood of political party quibbling, biases, and favours for party activists and adherents. In the final analysis, the misallocation of resources deprived some sections of the community of essential development, as distribution on considerations other than those of economic viability or feasibility became the yardstick of resource allocation.

73 Cassese, The Self-Determination of Peoples, in The International Bill of Human Rights: The Covenant on Civil and Political Rights 92, 103 (L. Henkin ed. 1981).

74 See Arts. 7 and 28 of the Universal Declaration on the Rights of Peoples, supra note 10, which read, respectively, as follows:

Every People has the right to have a democratic government representing all the citizens without distinction as to race, sex, belief or color, and capable of ensuring effective respect for the human rights and fundamental freedoms of all.

Any People whose fundamental rights are seriously disregarded has the right to enforce them, especially by political or trade union struggle and even, in the last resort, by the use of force.

75 See, e.g., Arts. 18, 25 and 26 of the Banjul Charter, supra note 1.

76 Cassese, supra note 49, at 154–55 (emphasis in original).

77 Babu observes in this regard:

Saddled with a kind of leadership which relies on commandism in place of rational persuasion, a large part of Africa is indeed not yet free. Which convincingly explains why the people do not respond effectively to the leaders’ calls for more efforts in “nationbuilding,” which simply means sacrifices and more voluntary efforts in place of the proper material incentives. . . . To invoke duty from a people without rights is to make democracy stand on its head. In the modern world, the people’s rights are prior to their duties, and the reversal of this order equals tyranny.

A. M. BABU, supra note 16, at 172. See further Cassese, supra note 73, at 92.

78 For a typology and discussion of the different ways that the right to self-determination could be claimed, see White, R. C. A. Self-Determination: Time for a Reassessment?, 28 Neth. Int’l L. Rev. 147 (1981)Google Scholar.

79 Crawford, supra note 69, at 136.