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African States: Themes Emerging from the Human Rights Council's Universal Periodic Review

Published online by Cambridge University Press:  28 May 2018

Damian Etone
Damian Etone*
Affiliation:
Staffordshire University
*
etonedamian@yahoo.com
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Abstract

This article examines the themes emerging from the engagement of African states with the Universal Periodic Review (UPR) mechanisms of the UN Human Rights Council. The underlying principles of universality, cooperation and dialogue that guide the review have given African states a renewed sense of engagement with the international human rights institution. Despite the universality of the process, regionalism and cultural relativism are important aspects in the engagement of African states with the UPR mechanism. This article considers the extent to which regionalism and cultural relativism may prevent UPR from acting as an effective mechanism for human rights enforcement. It examines the potential for UPR to complement other national, regional and international human rights mechanisms, and the danger of state ritualism. These have ramifications for the extent to which UPR can achieve its goal of improving the human rights situation on the ground in Africa.

Keywords

AfricaUniversal Periodic Reviewregionalismcultural relativismcomplementarityritualism
Type
Research Article
Information
Journal of African Law , Volume 62 , Issue 2 , June 2018 , pp. 201 - 223
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Copyright
Copyright © SOAS, University of London 2018 

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Footnotes

*

Lecturer in law, Staffordshire University. The author's research focuses on African states and their engagement with the UN Human Rights Council and its Universal Periodic Review Mechanism. Enormous thanks to Associate Professor Matthew Stubbs and Associate Professor Laura Grenfell for their relentless commitment to improving the quality of earlier drafts of this article. This article is a part of the author's PhD thesis, which examined the engagement of African states with the Universal Periodic Review Mechanism of the UN Human Rights Council.

References

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2 Id, para 4(a).

3 Id, para 1. Nadia Bernaz has questioned the legal basis for the UPR; see Bernaz, N “Reforming the UN human rights protection procedures: A legal perspective on the establishment of the Universal Periodic Review mechanism” in Boyle, K New Institutions for Human Rights Protection (2009, Oxford University Press) 75Google Scholar at 79–82.

4 HRC, id, para 31.

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7 De Frouville also supports the establishment of a World Court of Human Rights, which would be more confrontational than a World Commission for Human Rights. See id at 264–65.

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14 There are currently 28 UN member states without overdue treaty body reports.

15 TS Bulto “Africa's engagement with the Universal Periodic Review: Commitment or capitulation?” in Charlesworth and Larking (eds) Human Rights, above at note 8, 235 at 243.

16 The exception is South Africa, whose report was rejected during the first cycle of the review because it failed to comply with the page limits. See Chenwi, L South Africa: State of State Reporting under International Human Rights Law (2010, Community Law Centre)Google Scholar at 62.

17 HRC “Institution building”, above at note 1, para 3k.

18 In 2003, the African Union established APRM as a self-monitoring initiative to promote good governance in Africa. APRM is designed to promote three fundamental values of the African Union: freedom and human rights, participatory development and accountability. It has a similar cooperative framework to that of the UPR.

19 See McMahon, E et al. “Comparing peer reviews: The Universal Periodic Review of the UN Human Rights Council and the African Peer Review Mechanism” (2013) 12 African and Asian Studies 266CrossRefGoogle Scholar at 276.

20 APRM “13th anniversary of the African Peer Review Mechanism” (9 March 2016), available at: <https://aprm-au.org/st_car/13th-anniversary-of-the-african-peer-review-mechanism/> (last accessed 14 March 2018).

21 It is worth mentioning that some of these themes also apply to the engagement of other states and are not exclusive to Africa.

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25 HRC “Report of the Working Group on the Universal Periodic Review: Kenya” 15th sess, agenda item 6, UN doc A/HRC/15/8 (17 June 2010) at 142.63 and 142.87.

26 Id at 143.39 and 143.44.

27 Id at 142.61.

28 Id at 143.38.

29 HRC “Report of the Working Group on the Universal Periodic Review: Nigeria” UN doc A/HRC/11/26 (5 October 2009) at 14.

30 Ibid.

31 See HRC “Report of the Working Group on the Universal Periodic Review: Chad” UN doc A/HRC/25/14 (3 January 2014) at 110.18 and 110.120.

32 See id, addendum at 2.

33 South Africa was critical of the human rights situation in a few African states and, in those instances, the criticisms were mild and immediately balanced with positive remarks.

34 South Africa referred specifically to economic sanctions. See HRC “Report of the Working Group on the Universal Periodic Review: Zimbabwe” UN doc A/HRC/19/14 (19 December 2011) at 28.

35 HRC “Report of the Working Group on the Universal Periodic Review: Sudan” UN doc A/HRC/18/16 (11 July 2011) at 83.48.

36 See Human Rights Watch “World report 2015: Sudan” (2015), available at: <https://www.hrw.org/world-report/2015/country-chapters/sudan> (last accessed 14 March 2018).

37 See UPR “Database of recommendations”, available at: <http://s.upr-info.org/1G1cXQV> (last accessed 14 March 2018).

38 Ibid.

39 Ibid.

40 Examples include human trafficking and the influx of refugees because of an economic or political crisis.

41 See HRC “Report of the Working Group on the Universal Periodic Review: Guinea-Bissau” UN doc A/HRC/15/10 (16 June 2010) at 55.

42 See HRC “Report of the Working Group on the Universal Periodic Review: Benin” UN doc A/HRC/8/39 (28 May 2008) at 44.

43 RL Blackburn “Cultural relativism in the Universal Periodic Review of the Human Rights Council” (Institut Català Internacional per la Pa working paper 2011/03) at 7, available at: <http://www.upr-info.org/sites/default/files/general-document/pdf/-blackburn_upr_cultural_relativism.09.2011.pdf> (last accessed 14 March 2018).

44 Ibid.

45 See H Alexander “Robert Mugabe at UN General Assembly says: We are not gays” (29 September 2015) The Telegraph, available at: <http://www.telegraph.co.uk/news/worldnews/africaandindianocean/zimbabwe/11898748/Robert-Mugabe-at-UN-General-Assembly-says-We-are-not-gays.html> (last accessed 14 March 2018).

46 HRC “Report of the Working Group on the Universal Periodic Review: Kenya” 15th sess, agenda item 6, UN doc A/HRC/15/8 (17 June 2010) at 108.

47 HRC “Report of the Human Rights Council on its eighth session” UN doc A/HRC/8/52 (1 September 2008) at 714.

48 HRC “Report of the Working Group on the Universal Periodic Review: Cuba” 24th sess, agenda item 6, UN doc A/HRC/24/16 (8 July 2013) at 170.132.

49 See “Excerpts from a speech given by Mr Ositadinma Anaedu, representative of the Nigerian delegation to the UN on behalf of the African Group (minus South Africa)”, available at: <http://www.familywatchinternational.org/fwi/Anaedu_Nigerian_speech_excerpts.pdf> (last accessed 14 March 2018).

50 Ibid.

51 Universal Declaration of Human Rights, GA res 217 A (III), UN GAOR, 3rd sess, 183rd plenary meeting, UN doc A/RES/217A (III) (10 December 1948).

52 HRC “Institution building”, above at note 1, para 1.

53 International Service for Human Rights “Israel: Decision to boycott human rights review threatens the rule of law” (29 January 2013), available at: <http://www.ishr.ch/news/israel-decision-boycott-human-rights-review-threatens-rule-law> (last accessed 14 March 2018).

54 This included Russia, Slovakia and Azerbaijan.

55 This included Australia, France, Belgium, Germany, Denmark, Netherlands and New Zealand.

56 During UPR II, South Africa made recommendations to 30 African states, 13 Asian states, two EEG states, nine GRULAC states and six WEOG states.

57 For the different draft documents that raised concern on this issue, see Gaer, FD “A voice not an echo: Universal Periodic Review and the UN treaty body system” (2007) 7/1 Human Rights Law Review 109CrossRefGoogle Scholar at 111.

58 UN General Assembly “Resolution adopted by the General Assembly: Human Rights Council” GA res 60/251, UN GAOR, 60th sess, 72nd plenary meeting, agenda items 46 and 120, UN doc A/Res/60/251 (3rd April 2006) at 5(e).

59 HRC “Institution building”, above at note 1, para 3(f).

60 See Rome Statute of the International Criminal Court, art 1; Stigen, J The Relationship Between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (2008, Martinus Nijhoff Publishers)CrossRefGoogle Scholar.

61 Bernaz “Reforming the UN human rights”, above at note 3 at 78 and 88.

62 Gaer “A voice not an echo”, above at note 57 at 122.

63 Ibid.

64 Rodley, NS “UN treaty bodies and the Human Rights Council” in Keller, H and Ulfstein, G (eds) UN Human Rights Treaty Bodies: Law and Legitimacy (2012, Cambridge University Press) 320Google Scholar.

65 Id at 327.

66 Id at 329.

67 Ibid. Heather Collister makes a similar argument when she finds that UPR contradicts or weakens treaty body recommendations and enables states to use the process as a means of rejecting treaty body recommendations. See H Collister “Rituals and implementation in the Universal Periodic Review and the human rights treaty bodies” in Charlesworth and Larking Human Rights, above at note 8, 109 at 116–19.

68 de Frouville, O “Building a universal system for the protection of human rights: The way forward” in Bassiouni, MC and Schabas, WA (eds) New Challenges for the UN Human Rights Machinery (2011, Intersentia) 241Google Scholar at 250–55.

69 Ibid.

70 Id at 250–51.

71 Quane, H “The significance of an evolving relationship: Asian states and the global human rights mechanisms” (2015) 15/2 Human Rights Law Review 283CrossRefGoogle Scholar at 303–09.

72 Id at 295–309.

73 Examples of UPR recommendations that are contrary to the state's international obligations have been recorded in the reviews of Malaysia, Chile and The Netherlands. See Collister “Rituals and implementation”, above at note 67.

74 The Kenyan government established CIPEV to investigate the facts and circumstances surrounding post-election violence in 2007–08. See CIPEV “Report of the Commission of Inquiry into the Post-Election Violence” (16 October 2008).

75 Republic of Kenya “Report of the National Task Force on Police Reforms: Abridged version” (December 2009) ICC-01/09-02/11-91-annex 3 at 13.

76 HRC “Report of the Working Group: Kenya”, above at note 25 at 101.15.

77 Id at 101.20.

78 CIPEV “Report of the Commission of Inquiry”, above at note 74 at 476.

79 HRC “Report of the Working Group: Kenya”, above at note 25 at 101.10.

80 HRC “Report of the Working Group on the Universal Periodic Review: Kenya” 29th sess, agenda item 6, UN doc A/HRC/29/10 (26 March 2015) at 142.91, 142.96, 142.101, 142.102, 142.104, 142.107, 142.107, 142.108, 142.116 and 142.117.

81 HRC “Report of the Working Group: Kenya”, above at note 25 at 102.5 and 103.4.

82 The government of the Republic of Kenya “Response to the report of the special rapporteur on extrajudicial, arbitrary or summary executions, Professor Philip Alston, on his mission to Kenya from 16–25 February 2009” (Nairobi, 22 May 2009), available at: <http://www.nation.co.ke/blob/view/-/604192/data/80408/-/7rjry0z/-/gava> (last accessed 14 March 2018).

83 After initially noting its concerns with the report. See HRC “Report of the Working Group: Kenya”, above at note 25 at 106.

84 Id at 101.114.

85 Id at 101.48–101.57 and 101.97–101.108.

86 Id at 101.51.

87 Id at 101.56.

88 See de Frouville “Building a universal system”, above at note 68 at 250–55; Bernaz “Reforming the UN human rights”, above at note 3 at 79–91.

89 Centre for Economic and Social Rights “Who will be accountable? Human rights and the post-2015 development agenda” (2013); OHCHR “President of the General Assembly: Interactive dialogue: ‘Elements for a monitoring and accountability framework for the post-2015 development agenda’” (1 May 2014); Centre for Reproductive Rights and others “Accountability for the post-2015 agenda: A proposal for a robust global review mechanism”, available at: <https://www.reproductiverights.org/document/accountability-for-the-post-2015-agenda-a-proposal-for-a-robust-global-review-mechanism> (last accessed 8 April 2018).

90 For a more detailed discussion, see Etone, D “The effectiveness of South Africa's engagement with the universal periodic review (UPR): Potential for ritualism?”(2017) 33/2 South African Journal on Human Rights 258CrossRefGoogle Scholar.

91 Braithwaite, J, Makkai, T and Braithwaite, V Regulating Aged Care (2007, Edward Elgar)CrossRefGoogle Scholar at 7.

92 H Charlesworth and E Larking “Introduction: The regulatory power of the Universal Periodic Review” in Charlesworth and Larking (eds) Human Rights, above at note 8, 1 at 16.

93 Braithwaite, V Defiance in Taxation and Governance (2009, Edward Elgar)CrossRefGoogle Scholar at 77–79.

94 Charlesworth and Larking “Introduction”, above at note 92 at 11.

95 Ibid.

96 “Statement by Ambassador Baso Sangqu, permanent representative of South Africa, on the report of the Human Rights Council to the 42nd plenary meeting of the United Nations General Assembly” UN GAOR, 65th sess, 42nd plenary meeting (2 November 2010), available at: <http://www.southafrica-newyork.net/speeches_pmun/view_speech.php?speech=3810844> (last accessed 14 March 2018).

97 HRC “Report of the HRC on its eighth session”, above at note 47 at 567.

98 This may well be why South Africa did not indicate its position on any of the recommendations.

99 HRC “Report of the Working Group on the Universal Periodic Review: South Africa” UN doc A/HRC/8/32 (23 May 2008) at 67(1). See a similar recommendation from Mexico during UPR II for South Africa to prohibit and punish corporal punishment at home and in schools: see HRC “Report of the Working Group on the Universal Periodic Review: South Africa” UN doc A/HRC/21/16 (12 July 2012) at 124.88.

100 See Global Initiative to End All Corporal Punishment of Children “Corporal punishment of children in South Africa” at 1–6, available at: <http://www.endcorporalpunishment.org/assets/pdfs/states-reports/SouthAfrica.pdf> (last accessed 14 March 2018); Global Initiative to End All Corporal Punishment of Children “South Africa: Briefing for the Human Rights Council Universal Periodic Review: 1st session, 2007” (2007); South African Human Rights Commission “NHRI submission to the Universal Periodic Review mechanism” (2007); Children Now “Alternate report to the UN Committee on the Rights of the Child, prepared for the Universal Periodic Review of South Africa, scheduled for April 2008” (2008); Instituto Internazionale Maria Ausiliatrice et al “The situation on the rights of the child in South Africa” (2011).

101 HRC “Report of the HRC on its eighth session”, above at note 47 at 568.

102 Ibid. See a similar response by the government during UPR II: HRC “Report of the Working Group: South Africa”, above at note 99 at 121.

103 Centre for Child Law Promoting Effective Enforcement of the Prohibition against Corporal Punishment in South African Schools (2014, Pretoria University Press)Google Scholar.

104 Id at 11.

105 Committee on the Rights of the Child “Concluding observations of the Committee on the Rights of the Child, South Africa” UN doc CRC/C/15/Add.122 (2000) at 28; Committee Against Torture “Concluding observations of the Committee on the Rights of the Child, South Africa” UN doc CAT/C/ZAF/CO/1 (7 December 2006) at 25; African Committee of Experts on the Rights and Welfare of the Child “Concluding recommendations by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on the Republic of South Africa initial report on the status of implementation of the African Charter on the Rights and Welfare of the Child” (2014) at 35, available at: <http://www.acerwc.org/?wpdmdl=8754> (last accessed 14 March 2018).

106 Ibid.

107 See Global Initiative to End All Corporal Punishment of Children “Corporal punishment”, above at note 100; Centre for Child Law Promoting Effective Enforcement, above at note 103.

108 See for example HRC “Report of the Working Group: South Africa”, above at note 99 at 124.50, 124.51 and 124.75–124.87.

109 Constitution of the Republic of South Africa Act 1996, chap 2, art 9(3).

110 HRC “Human rights, sexual orientation and gender identity” UN doc A/HRC/RES/17/19 (14 July 2011).

111 HRC “Human rights, sexual orientation and gender identity” UN doc A/HRC/RES/27/32 (2 October 2014).

112 HRC “Report of the HRC on its eighth session”, above at note 47 at 572.

113 HRC “Report of the Working Group: South Africa”, above at note 99, addendum, annex A at 124.51.

114 The Centre for Applied Psychology of the University of South Africa et al “Violent hate crime in South Africa” (2012) at 1–9, available at: <http://www.upr-info.org/sites/default/files/document/south_africa/session_13_-_may_2012/js6uprzafs132012jointsubmission6e.pdf> (last accessed 14 March 2018); Human Rights Watch ‘“We'll show you you're a woman’: Violence and discrimination against black lesbians and transgender men in South Africa” (December 2011), available at: <https://www.hrw.org/sites/default/files/reports/southafrica1211.pdf> (last accessed 14 March 2018).

115 Human Rights Watch, id at 1.

116 Id at 14–15.

117 See The Centre for Applied Psychology et al “Violent hate crime”, above at note 114.

118 Ibid. UPR II recommendation made by The Netherlands to South Africa addresses this issue; see HRC “Report of the Working Group: South Africa”, above at note 99 at 124.81.

119 South Africa has not implemented the recommendations that South Africa abides by its constitutional provisions, provides effective protection to sexual minorities and enacts comprehensive anti-discrimination law.

120 Mwambene, L “Realisation or oversight of a constitutional mandate? Corrective rape of black African lesbians in South Africa” (2015) 15/1 African Human Rights Journal 58Google Scholar.

121 Committee on the Elimination of All Forms of Discrimination Against Women “Concluding observations of the Committee on the Elimination of All Forms of Discrimination against Women: South Africa” UN doc CEDAW/C/ZAF/CO/4 (4 February 2011) at 39–40.

122 D De Lange “Call to suspend ANC MP for opening fire on gay rights” (8 May 2012) Cape Times at 4. This statement was made during a submission made to the Constitution Review Committee calling for changes to sec 9 of the constitution, which protects against discrimination based on sexual orientation.

123 “South Africa: Zuma slammed for views on homosexuality, same-sex marriage” (27 September 2006) IRIN, available at: <http://www.irinnews.org/report/61195/south-africa-zuma-slammed-for-views-on-homosexuality-same-sex-marriage> (last accessed 14 March 2018).

124 Graeme Reid is the Director of the Lesbian, Gay, Bisexual and Transgender Rights Programme at Human Rights Watch. See G Reid “South Africa's worrying prevarication on LGBT rights” (2014) Policy Review, available at: <https://www.hrw.org/news/2014/09/22/south-africas-worrying-prevarication-lgbt-rights> (last accessed 14 March 2018).

125 Ibid.

126 HRC “Report of the Working Group: South Africa”, above at note 99 at 124.33–124.46.

127 Croucher, S “South Africa's illegal aliens: Constructing national boundaries in a post-apartheid state” (1998) 21 Ethnic and Racial Studies 639CrossRefGoogle Scholar; Peberdy, S “Imagining immigration: Inclusive identities and exclusive politics in post 1994 South Africa” (2001) 48 Africa Today 15CrossRefGoogle Scholar.

128 Report of the Committee on the Elimination of Racial Discrimination 61st sess, supp no 18 (A/61/18), UN doc A/61/18 (16 August 2006) at 390.

129 Ibid.

130 APRM “APRM country report for South Africa no 4” (May 2007) at 3.134.

131 J Crush et al “The perfect storm: The realities of xenophobia in contemporary South Africa” (2008), available at: <https://www.africaportal.org/publications/the-perfect-storm-the-realities-of-xenophobia-in-contemporary-south-africa/> (last accessed 14 March 2018).

132 HRC “Report of the HRC on its eighth session”, above at note 47 at 574.

133 HRC “Report of the Working Group: South Africa”, addendum, above at note 99 at 124.36.

134 Ibid.

135 While there has been a remarkable level of consultation on the draft plan, it has taken too long to finalize, given that South Africa hosted the Third World Conference Against Racism in 2001, which adopted a resolution that urged “states to establish and implement without delay” a national action plan against racism, xenophobia and related intolerance. See Department of Justice and Constitutional Development “Address by the deputy minister of justice and constitutional development, the Hon John Jeffery, MP, at a consultative workshop on the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, 15 May 2015”, available at: <http://www.justice.gov.za/m_speeches/2015/20150515_NAP.html> (last accessed 14 March 2018).

136 See reports of NGOs and other stakeholders for South Africa's UPR. The Centre for Applied Psychology et al “Violent hate crime”, above at note 114 at 3; Human Rights Institute of South Africa et al “Joint submission to the Universal Periodic Review” (28 November 2011) at 5.1; UN High Commission for Refugees “Submission by the United Nations High Commission for Refugees for the Office of the High Commissioner for Human Rights’ compilation report: Universal Periodic Review: South Africa” (2011) at 3; Lawyers for Human Rights and Consortium for Refugees and Migrants in South Africa “The situation of the rights of refugees and Migrants in South Africa: Follow-up since 2008” (2011) at 9–10.

137 W Gumede “South Africa must confront root causes of its xenophobic violence” (20 April 2015) The Guardian, available at: <http://www.theguardian.com/commentisfree/2015/apr/20/south-africa-xenophobic-violence-migrant-workers-apartheid> (last accessed 14 March 2018).

138 Ibid.

139 Bulto “Africa's engagement”, above at note 15 at 253.

140 Charlesworth and Larking “Introduction”, above at note 92 at 16.

141 See M Mutua Human Rights NGOs in East Africa (2008, University of Pennsylvania Press) at 47.