A covenant of compassion: African humanism and the rights of solidarity in the African Charter on Human and Peoples' Rights

 Benjamin Elias Winks
 LLB (Johannesburg), LLM (Leiden)
 Law Clerk, Constitutional Court of South Africa; Visiting Lecturer, University of Johannesburg, South Africa
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 Edition: AHRLJ Volume 11 No 2 2011
  Pages: 447 - 464
 Citation: (2011) 2 AHRLJ 447-464
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This paper was prepared for presentation at the conference 'Thirty years of the African Charter: Looking forward while looking back', hosted by the African Commission on Human and Peoples' Rights and the Centre for Human Rights, University of Pretoria, on 11 July 2011. It has since been revised and expanded, with a great debt of gratitude owed to Dr Nyoko Muvangua and Mr Tor Krever for their helpful comments.

Summary

South Africa's relatively peaceful transition from apartheid to democracy would not have been possible without the prevalence of a spirit of solidarity (ubuntu), not only within South Africa but across the continent, since it is largely due to African solidarity with the struggle against apartheid that an enabling environment for negotiation could be created. Therefore, the importance of including the unique and unprecedented solidarity rights of peoples in the African Charter on Human and Peoples' Rights cannot be emphasised enough. The rights of peoples – to existence, equality, self-determination, sovereignty over natural resources, peace and security, development and a satisfactory environment – were included in the African Charter for historical and philosophical reasons rooted uniquely in the African experience. The recognition of these rights has been resisted in other parts of the world along the lines of ideological division drawn during the Cold War. Solidarity rights, founded on the philosophy of African humanism, did not fit into the Cold War jurisprudential dichotomy, which featured, at the one extreme, the Western emphasis on liberty, rights and competition and, at the other extreme, the Eastern emphasis on equality, duties and compulsion. The solidarity rights rather represented an African emphasis on fraternity, reciprocity and compassion. African humanism has been applied in practice as a viable and valuable legal philosophy, particularly by the Constitutional Court of South Africa. Solidarity rights in the African Charter are similarly applicable as viable and valuable legal constructs, and therefore their precise contents and consequences may and must be explored through practical enforcement.

1.  Context: Struggle and solidarity

1.1  A South African story

When I was born, 25 years ago, I did not know that my country was at war with itself and the world. I did not know that I was being born during a state of emergency, and that my government was developing nuclear weapons and committing murder and torture in my name, in the name of my skin. [1] I did not know that compassion was a crime in my country. And I did not know that, on the very day I was born, one of my countrymen was being condemned to death. He had been convicted of murdering a poet he perceived as a traitor to the struggle against apartheid. [2] It eventually emerged that the poet, Ben Langa, had been tarred as a traitor, and consequently killed, only on the basis of misinformation planted by the apartheid security police. [3] It could not have been predicted that, less than a decade later, Pius Langa would find himself sitting as a justice of the newly-created Constitutional Court of South Africa, abolishing precisely the penalty imposed on the men who murdered his brother. Yet, in S v Makwanyane, [4] that is exactly what he did, for the following reasons: [5]

1.2  A spirit of solidarity

Seen in context, the reference in this judgment to the ethical concept of ubuntu is deeply meaningful. uBuntu is the spirit that steadied South Africa's transition from racist repression to a constitutional democracy, by valuing reconciliation over retribution, and compassion over confrontation. [6] It is significant that the Constitutional Court abolished the death penalty only a year after the dawn of democracy, before the Truth and Reconciliation Commission could help to heal the wounds of the past, and when so many people harboured the hope that those who murdered their loved ones in the name of apartheid would face the same fate. [7]

However, there is a further, unseen and unintended significance to the Court's tribute to ubuntu. South Africa's transition would surely not have been possible without countless acts of courageous compassion from people across the African continent. During the darkest days of apartheid, a powerful spirit of solidarity took root, from Lusaka to Lagos, from Maputo to Mogadishu, from Dakar to Dar es Salaam. Our neighbours gave refuge to our exiled leaders, lent support to our struggle, and endured frightful reprisals at the hands of the apartheid state and its allies. [8] This solidarity was immortalised in an international pact in 1981, when the free states of Africa united in signing the African Charter on Human and Peoples' Rights (African Charter): [9]

1.3  A right to solidarity

The African Charter came into force in October 1986, and all Africans became the bearers of unique and unprecedented rights. Significantly, the Charter recognised the right of all peoples to self-determination, [10] and with it the 'right to the assistance of the state parties to the present Charter in their liberation struggle'. [11] In this sense, the African Charter truly enshrined a right to solidarity. This is momentous because it is substantially to continental solidarity that the success of the struggle against apartheid is owed. However, as we all well know, the struggle continues, not only in South Africa but across the continent: that is, the struggle for the very existence and equality of peoples, for genuine self-determination and sovereignty over our natural resources, for peace, development, and a healthy environment. In many ways, this is the timeless struggle between 'society' and 'the state'. This struggle is far from over, and if it is to succeed, what we will require, above all, is solidarity.

It bears mention that solidarity is sustained through institutions, which serve as centres of information, communication and commonality, among peoples divided by vast distances and social differences, but united in their commitment to human dignity, liberty and equality. Twenty-five years ago, two such institutions were created. In South Africa, in May 1986, between two states of emergency, the Centre for Human Rights was founded at the University of Pretoria, and it has been at the forefront of human rights education and academic activism ever since. In October of that year, with the entry into force of the African Charter, the African Commission on Human and Peoples' Rights (African Commission) came into being, mandated 'to promote human and peoples' rights and ensure their protection in Africa'. [12] I feel distinctly privileged, therefore, in the twenty-fifth year of my life and theirs, to celebrate 30 years of the African Charter by discussing its unique rights of solidarity, and the spirit of solidarity that underlies them, which binds us together, as Africans, in our common pursuit of sustainable peace and progress.

2.  Concept: Rights of solidarity

2.1  A universal declaration of human rights

The adoption of the Universal Declaration of Human Rights (Universal Declaration) in 1948 was the first phase of a project called the International Bill of Human Rights, [13] which would include the adoption of two binding international instruments in 1966: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). When these Covenants came into force in 1976, the project was concluded, but not yet completed. ICCPR enshrined primarily 'negative' rights (such as life, liberty and privacy), corresponding to articles 3 to 21 of the Universal Declaration, which require states to refrain from certain intervention. [14] ICESCR enshrined primarily 'positive' rights (such as housing, healthcare and social security), corresponding to articles 22 to 27 of the Universal Declaration, which require states to resort to certain intervention. [15] However, neither of the Covenants enacted the right reflected in article 28 of the Universal Declaration: 'Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.' Although article 1 common to both Covenants proclaims that '[a]ll peoples have the right of self-determination', by virtue of which they may 'freely determine their political status and freely pursue their economic, social and cultural development', [16] and may also 'freely dispose of their natural wealth and resources', [17] this right has been restricted, in its interpretation, to contexts of colonial domination. [18]

2.2  A universal declaration of the rights of peoples

When the two international covenants came into force in 1976, it was recognised by a conference of academics and activists in Algiers that 'the quest for a new international, political and economic order' was far from complete: [19]

A truly visionary document, the Algiers Declaration proclaimed for all peoples the right to existence, [20] the right to political self-determination, [21] economic rights, [22] the right to culture, [23] the right to the environment and common resources, [24] and the rights of minorities. [25] These rights were to be 'exercised in a spirit of solidarity amongst the peoples of the world and with due regard for their respective interests'. [26] The obligations arising from these rights were owed 'towards the international community as a whole', [27] and owed by 'all members of the international community'. [28]

2.3  A third generation of human rights

In a similar sense, the United Nations Educational, Scientific and Cultural Organisation (UNESCO)'s Director-General at that time, the Senegalese educator Amadou-Mahtar M'Bow, observed that ICCPR and ICESCR represented, respectively, only the first and the second generations of human rights, and that a 'third generation of human rights' still required similar recognition. [29] The three generations of human rights were correspondingly compared to the three themes of the French Revolution: liberté, égalité and fraternité. [30] While ICCPR concerned itself with liberty, and ICESCR concerned itself with equality, neither covenant placed any emphasis on fraternity or solidarity. Thus, in 1977, the Director of UNESCO's Division on Human Rights and Peace, Karel Vašák, presented the following thesis: [31]

In a world plagued by growing insecurity and inequality, it became clear that the full realisation of first and second generation rights 'required international co-operation through solidarity of all peoples', [32] and so the third generation immediately captured the imagination of the international human rights community. At conference after conference, and in resolution after resolution, the rights of solidarity were proclaimed and propounded, as a concept, but their contents were never clearly defined, and their practical consequences were never fully explored. [33] The envisaged 'Third Covenant' was never drafted and never tabled at the United Nations (UN), and to this day these rights remain obscure and unenforceable in the global architecture of human rights.

3.  African Charter: Peoples' rights

3.1  An unprecedented development

In June 1981, at the 18th Assembly of Heads of State and Government of the Organization of African Unity (OAU) in Nairobi, the African Charter on Human and Peoples' Rights was adopted, giving the African continent the most comprehensive and progressive international human rights instrument the world has ever seen. The African Charter is the first and only binding international instrument that directly recognises the solidarity rights of peoples: to existence, equality, self-determination, sovereignty over natural resources, peace, development and environment. [34]

Although the African Charter itself does not define the concept of 'peoples', it is clear that a people is something separate from the state, [35] since 'the primary impact of [a peoples' right] is against the government of the state in question, and one of its main effects is to internationalise key aspects of the relationship between the people concerned and that state'. [36] Fatsah Ouguergouz, a judge of the African Court on Human and Peoples' Rights (African Court), has described it as a 'chameleon-like term', 'whose content is dependent on the function of the right concerned'. [37] Still, the African Commission has developed certain criteria for the identification of 'peoples': [38]

It is important at this stage to clarify that, although the discourse on 'third generation' rights of solidarity revolved around the rights to peace, development and environment, these rights are not the only rights of solidarity. Rather, I contend that all of the rights recognised as peoples' rights in the African Charter are rights of solidarity. This is true because the existence and equality of peoples, as well as their self-determination and sovereignty over their natural resources, cannot be fully realised without compassion and co-operation across borders, not only by states but by other peoples, persons and corporations. The protection and promotion of these interests also (alongside peace, development and environment) require concerted efforts by everyone. The inherent imbalance of status and power between a people and a state is such that the vindication of peoples' rights requires solidarity among peoples across borders.

3.2  A historical and philosophical imperative

The recognition of the solidarity rights in the African Charter is rooted in two reasons unique to the African world view. One reason is historical, remembering that the African experience of human rights violations was largely of widespread and systematic violations of the rights of entire peoples rather than specific individuals, through slavery, colonialism and apartheid. In colonised Africa, 'the state' was a notion in contrast and indeed in conflict with that of 'the people', and solidarity among peoples was necessary to break the bonds of oppression. The other reason is philosophical, reflecting that, in African social theory, a person 'is not an isolated and abstract individual, but an integral member of a group animated by a spirit of solidarity'. [39] On this aspect, the OAU Rapporteur on the African Charter offered an insightful account: [40] 

In its final form, the African Charter explicitly invokes these historical and philosophical imperatives in its Preamble:

3.3  A principle of solidarity

Solidarity, as a principle, has been a fundamental pillar of African international law since the adoption of the Charter of the OAU in 1963, which proclaims among its purposes to 'promote the unity and solidarity of the African states', [41] and to 'co-ordinate and intensify their co-operation and efforts to achieve a better life for the peoples of Africa'. [42] The OAU's successor, the African Union (AU), also aims to 'achieve greater unity and solidarity between the African countries and the peoples of Africa', [43] and 'to strengthen solidarity and cohesion among our peoples'. [44] Solidarity, as a principle of international law, has been best described as follows: 'Solidarity requires an understanding and acceptance by every member of the community that it consciously conceives of its own interests as being inextricable from the interests of the whole.' [45]

This conception of solidarity accords closely with the historical and philosophical rationale for recognising peoples' rights in the African Charter. It is understandable, therefore, that the principle of solidarity features so strongly in the structure of African institutional law. 

4.  Culture: African humanism

4.1  A philosophy of solidarity

Fundamental to the notion of peoples' rights or solidarity rights is the philosophy of African humanism, which is ascertainable among most pre-colonial African societies, as a philosophy of compassion, community and solidarity. [46] I use the term 'African humanism' broadly to embrace the various social theories propounded by African anthropologists and philosophers that are united by the notion that the identity and morality of the individual are inextricably bound by her or his relationships with others in society. This is a point of consensus among most modern reformulations of traditional philosophy across the continent, including Kwame Nkrumah's Consciencism, Kenneth Kaunda's Humanism and Julius Nyerere's Ujamaa. [47]

In South Africa, African humanism finds its most prominent expression in the ethical concept of ubuntu, the meaning of which is unpacked in the Zulu proverb umuntu ngumuntu ngabantu (literally, a person is a person through people). In a Constitutional Court judgment relating to freedom of religion, Justice Langa discussed ubuntu as an African social theory, as follows: [48]

In seSotho and seTswana, the same concept is called botho. In Shona, it is known as unhu, and in Chichewa it is umunthu. In Kinyarwanda and Kirundi, the word ubuntu means humanity or human generosity, and the word obuntu bears a similar meaning in the Kitara dialect cluster in East Africa. The late Nigerian anthropologist, Victor C Uchendu, described a principle of 'kinship' prevailing in West Africa: [49]

The limitation of first and second generation human rights is that they demand delivery from the state, and thereby abstract all responsibility away from the individual. African humanism, fostered in tribal societies not structured as nation states, does not divorce the individual from her or his community, nor her or his responsibility to the community, through the avatar of the state. Relations within the community, and its relations with other communities, were always the collective responsibility of the community members themselves. In this respect, an illuminating exposition is provided by Murungi: [50]

In contrast to Western legal philosophies, ubuntu 'does not conceive of a social bond as one that precedes through an imagined social contract'. [51] As Cornell and Muvangua argue: [52]

4.2  A viable legal philosophy

Viewed with its vocabulary of rights and duties, African humanism naturally translates from a social philosophy into a legal philosophy, and as such it has increasingly been applied to concrete legal disputes by national courts across the continent. For instance, the Tanzanian Court of Appeal has held as follows in respect of constitutional interpretation: [53]

In justifying the abolition of the death penalty by the Constitutional Court of South Africa, Justice Yvonne Mokgoro explained that ubuntu 'envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity'. [54] Justice Tholakele Madala observed that it 'calls for a balancing of the interests of society against those of the individual', [55] and Justice Pius Langa described the theory as follows: [56]

This judgment was also applied by the Ugandan Constitutional Court, when it declared the sentence of banishment for the crime of witchcraft to be cruel and inhuman punishment and therefore unconstitutional: [57] 

Botho has recently been invoked by the Lesotho High Court in the context of the law of succession, to preclude the dispossession of a widow [58] and, in South Africa, it has also been applied to the law of defamation. [59] Despite its many detractors, [60] I contend that African humanism is indeed viable as a legal philosophy, and that the rights of solidarity bear unique jurisprudential value.

4.3  A valuable legal philosophy

The African Charter is unique among international human rights instruments, not only because it includes peoples' rights, but because it includes a chapter on individual duties. [61] According to article 27 of the African Charter:

        1      Every individual shall have duties towards his family and society, the state and other legally-recognised communities and the international community.

        2      The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

With its equality of emphasis on rights and duties, African humanism represents a theory of reciprocity. [62] However, the notion that a person forms part of a people, in a relationship of reciprocal rights and duties, was met with apprehension and hostility by a number of states and societies from the developed world. African humanism 'stands in stark contrast to the atomistic view of the Western world, which regards individuals as locked in a constant struggle against society for the redemption of their rights'. [63] The United States and the United Kingdom, for instance, were so hostile to the notion of solidarity rights that they officially withdrew from UNESCO when Director-General M'Bow refused to relent on his campaign for a third generation of human rights, on the grounds that this initiative 'would give international legitimacy to abuses of individual rights ... justified by appealing to a supposedly higher or equally valid set of collective rights'. [64] These Western fears were unfounded, however, as the solidarity rights were conceived as comprehensive rights, with both individual and collective dimensions, [65] and were not to be wielded by the state against the people, but rather by the people against the state. [66] It must be remembered, though, that this happened during the height of the Cold War, when the United Kingdom and the United States were providing arms, investment and intelligence to the apartheid regime. [67]

I mention this example because apartheid provides an instructive analogy for the unique jurisprudential value of African humanism. [68] In so many ways, apartheid is the very antithesis of ubuntu. While apartheid literally means 'separateness', ubuntu emphasises 'togetherness', interdependence and community. While apartheid criminalised compassion and solidarity, ubuntu is defined by them. Apartheid effectively divorced rights from duties, reserving for white people a maximum of rights and a minimum of duties, while relegating black people to the opposite fate. Apartheid did not only strive to separate white South Africans from black South Africans, but indeed to sever South Africa from its own continent, to create an enclave of Western, Christian and capitalist 'civilisation'. [69] In order to sustain itself, the apartheid regime placed itself at the frontlines of the Cold War, involving itself and its citizens directly in the proxy conflicts on the continent, from South West Africa and Angola to Mozambique. [70]

After the dawn of democracy, therefore, the project of healing the divisions in South African society was also, in a strong sense, the project of healing the ideological divisions of the Cold War. Our Constitution had to accommodate and address these divisions, and still has to do so today, as our country remains deeply divided – politically, economically and socially – embodying the frontier between the developed and developing worlds. As President Nelson Mandela predicted, 'as she battles to remake herself, South Africa will be like a microcosm of the new world striving to be born'. [71] In this context of vast disparities in development, the South African Constitutional Court has demonstrated the unique viability and value of ubuntu as a legal philosophy, in requiring meaningful mediation in the resolution of disputes between private landowners and homeless people dwelling on their property: [72]

In a similar sense, the colossal project of reconciling a deeply-divided world calls for compassion and co-responsibility on the part of all peoples, persons and corporations, rather than only states. The philosophy of African humanism, through the rights of solidarity, provides the possibility to adapt human rights theory to the task. Firstly, it explodes the binary fallacy of the Cold War that there is an absolute and irreconcilable election between individualist and communitarian legal philosophies. In the realm of human rights, as the Cold War intensified, the Western states clung to ICCPR, whereas the Eastern states clung to ICESCR. While the West rallied around capitalism, an economic philosophy sustained by competition, the East rallied around communism, an economic philosophy sustained by compulsion. And while the West advocated a theory of rights, emphasising liberty at the expense of equality, the East advocated a theory of duties, emphasising equality at the expense of liberty. [73] African states were expected, and induced through fear, force and corruption, to choose between the two.

African humanism, however, presented a third choice, and it harboured the unique jurisprudential potential to reconcile the rift between West and East. The rights of solidarity represented a theory of reciprocity, a reconciliation of rights and duties, with equal emphasis on liberty and equality. African humanism is neither a libertarian philosophy nor an egalitarian philosophy, but rather a fraternitarian philosophy, sustained by compassion, using fraternity or solidarity as a bridge between liberty and equality. Accordingly, in the South African Constitutional Court, Justice Albie Sachs has stated as follows: [74]

Although the Cold War has officially ended, the glaring gap between the developed and developing worlds still remains, as an 'explosive remnant of war', to borrow a phrase from international humanitarian law. [75] The brief intervening period between the West's crusade against communism and its current crusade against independent Islam (under the title of the 'war on terror') was marked by an unprecedented recognition of the value of peoples' rights. For instance, successive versions of a Declaration on the Right of Peoples to Peace were met with consistent and considerable abstention by Western states in the UN General Assembly in 1984, [76] 1985, [77] 1986 [78] and 1988, [79] but just after the close of the Cold War, in 1990, the Resolution on the Implementation of the Declaration on the Right of Peoples to Peace was adopted by consensus. [80] However, in 2002, just after the commencement of the war on terror, the Resolution on the Promotion of the Right of Peoples to Peace was opposed by 54 votes, [81] invariably those of Western states and their clients. 

We see a similar pattern in respect of the right to development. In the UN General Assembly in 1986, the Declaration on the Right to Development met with a vote of opposition from the United States and abstention from eight Western and West-aligned states, including West Germany, Israel, Japan and the United Kingdom. [82] By contrast, in 1990, a Resolution on the Right to Development was adopted by consensus. [83] But in December 2001, a further Resolution on the Right to Development was greeted with four votes of opposition (by Denmark, Israel, Japan and the United States) and abstention from 44 Western states and client states. [84]

It appears unlikely, therefore, that our deeply-divided world will quickly come to sufficient consensus about the rights of solidarity to adopt a third covenant and to complete the project of the International Bill of Human Rights.

5.  Conclusion: A call to compassion

We, as Africans, already have a third covenant: a legally-binding Covenant of Compassion, which recognises our rights (and corresponding responsibilities), as peoples, to existence, equality, self-determination, sovereignty over our natural resources, peace and security, development and the environment. In this article, I have tried to answer the call by President Nelson Mandela [85]

We must begin an inclusive conversation on the contents and consequences of our solidarity rights, and progressively demand their enjoyment and enforcement. We must also seek to enforce them in creative ways. Although the doors to the African Court on Human and Peoples' Rights may be closed to us, [86] we must begin to invoke our rights of solidarity in our national and regional courts and tribunals. Although the rights of solidarity have been invoked against states before the African Commission, [87] we must begin to enforce them against powerful individuals and corporations as well, [88] wherein lies their unique utility. More fundamentally, we must begin to engender a culture of compassion. In our boardrooms, courtrooms and classrooms, we must infuse our public spaces with a spirit of solidarity. Only when we foster a culture of continental solidarity, can we truly begin to pursue the realisation of the rights of all our peoples.