Archbishop Desmond Tutu listens at S. African Truth Commission hearing.
File photo by JUDA NGWENYA
Binaifer Nowrojee is a counsel with Human Rights Watch's Africa division and author and editor of the report "Protectors or Pretenders? Government Human Rights Commissions in Africa". She asks whether human rights activists should greet the proliferation of national human rights commissions with suspicion or approval.State-sponsored national human rights commissions represent a new vogue among governments, particularly in Africa. The number of state human rights commissions has multiplied across the continent in the past decade, from one country in 1989 to more than two dozen by 2000.The trend has been nurtured by financial and technical support from donor governments and the United Nations, which appear to view the phenomenon as a manifest contribution to human rights protection. The U.N. High Commissioner for Human Rights has made national human rights institutions a policy priority. The proliferation of national human rights commissions, including many established in highly repressive states, poses a dilemma for human rights activists more accustomed to challenging the state than collaborating with it: are these state-sponsored human rights bodies to be met with suspicion and distrust or should this development be encouraged and supported? Though many of the commissions are young, there is already evidence to indicate both the greatest potentials and failings.In 2002, some 26 African countries had provisions in their laws for a national human rights commission of some sort.This exponential growth has been a feature of the 1990s, alongside the seemingly intractable civil strife and authoritarian rule that has plagued much of the continent. Virtually all of Africa's human rights commissions have been created in the 1990s, the majority after 1995. Most are very new. Their proliferation is a sign that African governments, including some of the most repressive, appear to be accepting the international human rights discourse and acknowledging that human rights protection should be a part of their government portfolio. Under international law, the promotion and protection of human rights is a key responsibility of governments.At a national level, rights are protected through, among other things, legislation, an independent judiciary, the enactment and enforcement of individual safeguards and the establishment of democratic institutions.AUTONOMOUS NATIONAL BODYAnother means by which governments can seek to protect human rights is through the establishment of an autonomous national body, such as a human rights commission, that functions independently of other government agencies to work for laws and practices concerning human rights to be effectively applied by the government.A set of international standards, adopted by the U.N. General Assembly in 1993, provides a framework with the requisite standards applied by the U.N. to best ensure an effective national human rights institution. These standards, known as the Paris Principles, advance the importance of a broad mandate, a constitutional or legislative founding statute, an independent appointments procedure and adequate funding.The human rights commissions in Africa present a mixed picture. For the most part, they have proved to be a disappointment.The unfortunate truth is that many of the human rights commissions set up by African governments sit by silently in the face of serious abuses against the citizens they are entrusted to protect. Many have been formed by governments with dismal human rights records, weak state institutions and no history of autonomous state bodies. Some appear largely designed to deflect international criticism of serious human rights abuses. They have been formed with weak powers that limit their ability to investigate effectively, monitor or make public statements. Others have been staffed with commissioners who are unwilling or unable to protest against abuses because they are either beholden to the executive or fearful of reprisal. The majority of commissioners appointed have no prior experience or training in human rights standards or work and most commissions in Africa are under-funded and urban-based. In some cases, the work of the commission is not public and statements made by the commissions are difficult to obtain. Others have yet fully to carry out their work, due to pending enabling legislation, delays in staff appointments or inadequate funding.Even where the human rights commissions in Africa function well, they may have limitations. For example, some tend to avoid politically sensitive issues and focus on general education and human rights promotional activities.LESS OUTSPOKEN OVER TIMEIn a number of cases, including Cameroon, Chad, and Togo, commissions have become less outspoken over time in response to government pressure. In Benin or even Senegal, in spite of a degree of democratic openness, the human rights commissions have paradoxically not achieved as strong a record of activity as was expected. The self-imposed limitations placed by human rights commissioners on their own work are all the more glaring when compared to the activities of many of the non-governmental human rights groups, often carried out under even more difficult working conditions. A few of the most progressive national commissions, including Ghana, Senegal and South Africa, work closely with the non-governmental community. But they are still rare. In some cases, commissions have actually sought to downplay the work of non-governmental human rights groups by publicly attacking them or remaining silent in the face of attacks against human rights defenders as has been the case in Togo and Kenya. Yet the activities of the more promising commissions are proof that these state bodies have the potential to contribute positively to strengthening the human rights culture.The Ghanaian, South African and Ugandan commissions -- a testament to the integrity of those commissions' members -- appear to be the most promising in their willingness to speak out strongly against government abuses and to exhibit their independence in the interest of protecting the rights of citizens. Although it is still early, the Malawian and Senegalese commissions also show promise. Sometimes, in the most unexpected of places, Human Rights Watch found that commissions had made a difference. In Togo, Africa's oldest human rights commission --currently an apologist for government policies -- is credited with being the pro-democracy catalyst in the 1990s that led to a national conference, a new constitution and a relatively more open society. Others have sought ways to overcome the obstacles placed in their way by the government. In Nigeria, even under authoritarian military rule, the human rights commission, which lacked credibility as an independent monitoring body, carried out some useful work in less politically sensitive areas, in particular prison conditions, and provided some measure of protection to national human rights NGOs under severe attack from the military government.In Zambia, despite structural and financial limitations placed on it by the government, the human rights commission has taken its mandate seriously.International support for these bodies has been an important factor in spurring African governments to create commissions. At the regional level, the African Commission on Human and Peoples' Rights is increasingly encouraging member states to create national human rights institutions, and granting human rights commissions observer status. TECHNICAL ADVICEAt the international level, the Office of the U.N. High Commissioner is making the creation and promotion of national commissions a priority. A special adviser has been given the task of providing technical advice and material assistance to governments on national human rights institutions.However, the enthusiasm for their establishment has not been accompanied by a corresponding vigilance by the U.N. for the role that they play following their creation. Pressure and condemnation of compliant and weak human rights commissions by the U.N. High Commissioner for Human Rights is unheard of (even though the High Commissioner does not shy away from publicly condemning governments with similarly weak records on occasion).It remains to determine whether each case is simply sui generis, defying generalisation and comparison, or whether there are useful criteria for evaluating the chances of a human rights commission's success. Some of the variables that emerge are: the relative financial and political independence of the commissions, the legal tools at its disposal, the dynamism of its leadership, pluralism among its members, transparency in its operations, publicity given to its actions, and most importantly, the willingness of the commission to respond to violations. In each country, the different mix of these, and other, factors results in unique situations, that may or may not evolve over time. It is clear that human rights advocates need to think more carefully about the strengths and limitations of these bodies.There must be a greater reflection by governments and the international community as to whether a national human rights commission is the most effective means to promote human rights within the specific political or cultural context. Second, greater efforts should be made to push existing human rights commissions that are weak or compliant to take up their responsibilities. According to Human Rights Watch, if this phenomenon is to have lasting importance to the human rights movement, a more nuanced and advocacy-oriented approach needs to be adopted by governments, regional bodies, the U.N., and donors.
