*MINORITY RIGHTS, DEMOCRACY AND DEVELOPMENT: THE

AFRICAN EXPERIENCE

Kwadwo Appiagyei-Atua*

Abstract:

The paper contends that in spite of recent attempts to marry human rights to

development, the marriage remains one of convenience, and to the inconvenience of

disadvantaged groups, particularly indigenous peoples who are the focus of discussion

in this paper. The paper further contends that, contrary to the claim that the relationship

between rights and development were non-existent to begin with, there was such

recognition. In the context of promoting effective minority rights which lies at the heart

of peace and stability in Africa, I suggest that a re-visioning of the relationship between

rights, democracy and development in Africa which challenges the current notion of

“market democracy,” “good governance” and “liberal international orthodoxy”. The

analysis tackles ways in which effective promotion of minority rights can be realised,

based on a cultural relativist perspective. The paper finally proposes the creation of a

distinct Protocol or Charter on Minority Peoples in Africa to better serve their peculiar

needs and interests.

Keywords:

Minorities, indigenous people, human rights, democracy, development

1. Introduction

Though now gaining prominence in Africa, minority rights issues have its origins in

Africa’s colonial past. Therefore, any attempt to examine and propose solutions to the

minority rights question in Africa without taking into account its colonial past will be

tantamount to an attempt to barely scratch the surface of the problem. A combination

of factors that drove the colonial enterprise accounts for this phenomenon. Among

others was the application of the international law principles relating to acquisition of

territory, such as occupation and annexation and the related concept of terra nullius;

and, conquest. In other words, international law was used as a tool to foreground the

interests of Western states.1 Other concepts, in the realm of economics, were the theory

of acquisition of property and the modernisation theory which considered food

gatherers and hunters and nomads as “backward” people. Others are the imperial policy

of divide-and-rule and the creation of labour reserves in less resource-endowed areas

to trigger labour flow to the resource-rich areas.

* Senior Lecturer, Faculty of Law, University of Ghana, Legon, Accra, Ghana: LL.B (Hons), University

of Ghana, Legon; LL.M (Dalhousie University, Halifax, NS, Canada); DCL (McGill University,

Montreal, Quebec, Canada). This article was initially presented as a paper at the 4th EU-China Network

on Human Rights in Beijing, China, on November 10–11, 2003, while serving as Bank of Ireland Post-

Doctoral Fellow at the Irish Centre for Human Rights, National University of Ireland, Galway. 1 James Thuo Gathii, “Rejoinder: Twailing International Law,” (May, 2000), Vol. 98, No. 6, Michigan

Law Review, pp. 2066-2071; and, Anthony Anghie, Imperialism, Sovereignty and the Making of

International Law (Cambridge: Cambridge University Press 2005)

2

These factors form the basis of discussion of the relationship between minority rights,

democracy and development in Africa which culminate in the proferring of

recommendations to plug existing loopholes in the minority protection and promotion

system in Africa.

2. Colonial Origins of Minority Rights Issues in Africa

When capitalist adventurism extended to the shores of Africa and other places,

colonised people were not considered “human beings”. Therefore the idea of extending

the enjoyment of rights to the indigenous people of the land was simply unthinkable.

Thus, violations of human rights were rife.2 According to Howard, in Gold Coast,3 civil

and political rights, as the contemporary world now defines them, were certainly not

practiced under colonial rule. She writes:

Indeed, the British initially opposed U.N. passage of the Universal Declaration of Human

Rights because they were afraid that the declaration would oblige them to implement those

rights in their colonies.4

However, to foster and facilitate development of the colonial economic enterprise, some

members of the colonised population were “raised” to a higher status than others,

having been recognised as being “more human” or more prone to adapting European

behaviour, lifestyle and mannerisms than others of their kind. They were therefore

given preferential treatment over their “less human” brethren. Thus, the policy of “pick

and choose” or “divide and rule” was put into place.5 The “less human” brethren were

mainly communities who were not politically and socially organised and lived a

subsistence lifestyle.6 They had diffused political systems with no recognised headship

apart from family or community leaders. These communities lived as hunters, gatherers

and nomads whose economic lifestyles did not conform to Locke’s theory of property

acquisition – that is, “mixing one’s labour with the soil” to produce wealth.7 They were

sidelined because they were not considered economically attractive to colonialism.8

As noted by the African Commission,

They suffer from discrimination as they are regarded as less developed and less advanced than

other more dominant sectors of society. They often live in inaccessible regions, often

geographically isolated, and suffer from various forms of marginalization, both politically and

2 Bonny Ibhawoh, Imperialism and Human Rights. Colonial Discourses of Rights and Liberties in

African History (Albany, NY: State University of New York Press, 2007) 3 After independence in 1957, Gold Coast was changed to Ghana. 4 Rhoda Howard, Human Rights in Commonwealth Africa (Rowman and Littlefield, Totowa, 1987) p. 9.

Also, G. Bing, Reap the Whirlwind: An Account of Kwame Nkrumah's Ghana from 1950 to 1966

(London: Macgibbon & Kee Ltd, 1968) who records that the British colonial government refused the

inclusion of a bill of rights in Ghana’s independence constitution as proposed by K. Nkrumah, the

country’s first President. 5 Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in

Rwanda (Princeton: Princeton University Press, 2001) 6 In the Western Sahara case, the position that a people that are not socially and politically organised can

be conquered and their land occupied was finally rejected. Until then, that was the accepted norm in

international law. Western Sahara Case, ICJ Reports, 1975, p. 12. 7 J. Locke, Two Treatises of Civil Government (Cambridge University Press, Cambridge, 1988). 8 Heather Rae, State Identities and the Homogenisation of Peoples (New York, NY: Cambridge

University Press, 2002); also, Obiora Chinedu Okafor, Re-Defining Legitimate Statehood. International

Law and State Fragmentation in Africa (The Hague: Martinus Nijhoff Publishers, 2000)

3

socially. They are subjected to domination and exploitation within national political and

economic structures that are commonly designed to reflect the interests and activities of the

national majority. This discrimination, domination and marginalization violates their human

rights as peoples/communities, threatens the continuation of their cultures and ways of life and

prevents them from being able to genuinely participate in decisions regarding their own future

and forms of development.9.

These marginalised indigenous communities suffered most at the hands of colonialism.

When minerals resources were found on their land they were driven off or subjected to

all manners of abuse to force them to relinquish control over their lands.10 Also, because

of the nature of their political and social set-up, when it came to using local authorities

to implement colonial policies such as the “indirect rule,”11 the authorities found it more

expedient to deal with the “more civilised brethren” with organised political structures.

In other situations, in communities whose lands could not produce the cash crops such

as cocoa, coffee, tea, etc. that were in demand in Europe, nor minerals, a deliberate

policy to create labour reserves was implemented to trigger labour flow to centres of

commercial, farming, mining and industrial activities. Also, some were unfortunate to

be driven off their lands to live as “reserves residents” or as “squatters” in order to give

their lands away to support settler colonialism.12 Most of these people fall today into

the category of minorities – the Maasai, the San, the Ogiek, etc.

3. Post-Colonialism and Modernisation Theory

As a modern concept, development began to take root during the decolonisation era

when the industrial model of development with its accompanying modernisation theory

emerged.13 Modernisation theory was formulated not only as an attempt by the colonial

enterprise to escape blame for the negative development impact generated by unrelenting

exploitation and plunder; but also for the colonialists to act as the “new redeemers”.

Modernisation became the new development model for implementation in colonised

states in order not to sever the centre-periphery relations that capitalism established

through colonialism.14

9 African Commission on Human and Peoples’ Rights, Indigenous Peoples in Africa. The Forgotten

People? (Eks/Skolens Trykkeri,Copenhagen, Denmark, 2006) 10 A. Barume, ‘Indigenous Battling for Land Rights: The Case of the Ogiek of Kenya’, in J. Castellino

and N. Walsh (eds.), International Law and Indigenous Peoples (Martinus Nijhoff, Leiden, 2004) p. 365.

See also, Tom Degregori, The Environment, Our Natural Resources, and Modern Technology (Blackwell

Publishing, 2004), esp. 19ff. 11 Indirect rule has been defined by Dr. Lucy Mair as “the progressive adaptation of native institutions to

modern conditions”. Cf. K. A. Busia, The Position of the Chief in the Modern Political System of the Ashantis

(Frank Cass, London, 1968) p. 105. 12. In both cases, communities enjoyed a severely limited ‘”right of occupancy” over their lands. A

colonial agent is quoted by Okoth-Ogendo: “I am afraid that we have got to hurt their (the natives)

feelings, we have got to wound their susceptibilities and in some cases I am afraid we may even have to

violate some of their most cherished and possibly even sacred traditions if we have to move natives from

land on which, according to their own customary law, they have an inalienable right to live, and settle

them on land from which the owner has, under that same customary law an indisputable right to eject

them.” H.W.O., Okoth-Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in

Kenya (African Centre for Technology Studies, Nairobi, 1991) p. 58. Cf. A. Barume, supra note 10 p.

365. 13 C. K. Wilber and K. P. Jameson, ‘Paradigms of Economic Development and Beyond’, in C. K. Wilber

and K. P. Jameson, Directions in Economic Development (University of Notre Dame, Indiana, 1975) p. 7. 14 Claude Ake, Development and Democracy in Africa (Brookings Institution, 1996)

4

The concept of modernisation involves taking steps towards the attainment of progress

from an earlier to a later stage of maturation through the process of growth.15 According

to the logic of this model, social and cultural differences between nations, regions and

peoples are doomed to pass away unless they do not pose a stumbling block to progress

or unless they contribute to a nation’s specific advantage, such as when traditional values

help to discipline workforces to comply with the exigencies of organisational change.

Thus, Rostow outlined the four stages of evolution that all countries would have to go

through to attain economic growth: first, the “traditional” stage; the “preconditions of

modernisation” are established in the second stage; third, the “take off” stage; fourth,

the “drive to maturity”.16 One salient feature of this model of development is the notion

that economic growth, based on industrialisation and catapulted by science and

technology, would spawn a gradual uni-dimensional evolution towards a more open global

society imbued with some peculiar characteristics.17 Development is thus to be measured

by the level of technological advance as attained in a “high mass consumption” society.

This model gives the state a prominent role to play as the agent “for advancing the human

and economic dimensions of development through its exclusive prerogatives in collective

problem-solving” and conflict resolution.18 Obviously, the implementation of this theory

impacted most negatively on the tribal communities who did not have organised socio-

political systems.

4. Post-Colonialism and the Colonial Legacy

A major colonial legacy was the capitalist policy of homogenisation and integration of

colonised economies into the global economy and amalgamation of different ethnic

entities to form the independent nation-states of Africa. At the time of independence,

African leadership pursued this policy by seeking to consolidate communities of people

into the nation-state.

It was argued that to preserve unity, the community was to be incorporated into the state

or the community equated to the state. In pursuance of this policy, for example, the

Organization of African Unity (OAU) Cultural Charter for Africa stipulates in Article

4 that

15 K. Marx and F. Engels, Manifesto of the Communist Party (International Publishers, New York, 1989); E.

Agazzi, ‘Philosophical Anthropology and the Objective of Development’, in UNESCO, Goals of

Development (UNESCO, Paris, 1988). 16 W.W. Rostow, Stages of Economic Growth: A Non-Communist Manifesto (Cambridge University Press,

New York, 1960). 17 These include: (a) increasing individual occupational and social mobility together with a growing equality

of educational opportunities; (b) a fading away of differences based on traditional differences and lifestyles;

(c) a concomitant growth of the middle classes as a consequence of the increasing demand for highly skilled

and professional workers; and (d) consequently, a decrease in collective types of antagonism, especially of

class struggle. Jan Berting, "Technological Impact on Human Rights: Models of Development, Science and

Technology, and Human Rights," in C.G. Weeramantry, ed., The Impact of Technology on Human Rights:

Global Case-Studies 18. (Tokyo: United Nations University, 1993), 13. It is contented that the perpetuation

of this illusion of unilineal evolution toward an open, homogenised global society led to the slave trade and

colonialism with its immeasurable negative impact on the naturally-evolving human rights and development

from the communal to the political stages in Africa and the Americas. 18 S. Shivakumar, The Constitutional Foundations of Development Workshop in Political Theory and

Policy Analysis Working Paper Series (Indiana University Bloomington, 1986) p. 2.

5

The African States recognize that African cultural diversity is the expression of the same

identity; a factor of unity and an effective weapon for genuine liberty, effective responsibility

and full sovereignty of the people.19

The pursuit of this policy meant, for most minority groups, “internal colonialism”. They

were and some are still treated as second-class citizens. They continue to struggle for

recognition of their land rights; some remain on reserves carved out for them by the

colonial authorities, etc. Some are still considered “backward and inconvenient entities”

that pose as stumbling blocks to development and need to be assimilated or denied

citizenship status. Some have been killed, dispossessed and/or forced to assimilate in the

process of nation-building and national economic growth.20

Under the Charter of the then OAU, minority rights issues were put on the back burner.

All references to “peoples” were interpreted to mean a whole people, a country as a

whole.21 The principle of uti posseditis was affirmed in the 1964 OAU Cairo

Declaration on Border Disputes Among African States22 by seeking to legitimise

national borders inherited from colonial rule. In addition, sovereignty and territorial

integrity were held sacrosanct, underpinned by the principle of non-interference in

internal affairs.23 The OAU, supposedly, had more pressing issues to tackle and

contended that giving room for human rights would compromise that goal, especially

minority rights issues.

African leaders sought justification for a resort to this approach through the notion of

cultural relativism. Among others, it was contended that a strong hand was needed to

propel economic growth and giving room for the exercise of civil and political rights

would hamper development. Politically, it was argued that granting human rights would

lead to the unleashing of divisive forces that may occasion the collapse of the fragile

nation-state.24 Consequently, the contention was that emphasis should be placed on

economic, social and cultural rights over civil and political rights.25 But, in reality,

African leaders did not pursue economic, social and cultural rights. Had they done so,

better protection would have actually been accorded to minority groups.

5. Response to the African Post-Independence Leadership Approach

Indeed, African leaders got it wrong regarding the arguments made above. Regarding

the cultural relativist argument the human rights approach to cultural relativism is that

it should be used as a tool by oppressed people, not those who tread the corridors of

power. Secondly, it should be a sword (a tool to fight injustice) and not a shield (a

defence against injustices as a cultural choice). Finally, it is to be used as a tool to

correct the past, not to justify abuses in the present or future.

19 Adopted at the 13th Ordinary Session of the OAU, in Port Louis, Mauritius, from 2–5 July 1976. 20 R. Barsh, ‘The World’s Indigenous Peoples’, www.calvert.com/pdf/White_paper_barsh.pdf (last time

accessed: September 23, 2008). 21 R.N. Kiwanuka, “The Meaning of “People” in the African Charter on Human and Peoples’ Rights,” in

91988) Vol 82 (No.1) American Journal of International Law, 80.; also, Rachel Murray, The African

Commission on Human and People's Rights and International Law (Hart Publishing, 2000), at 103 ff. 22 ICJ, Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), judgment of 22

December 1986, <www.icj-cij.org/icjwww/>. 23 See articles II and III of the OAU Charter on the Principles and Purposes of the OAU, respectively. 24 Y. Ghai, ‘Human Rights and Governance: The Asian Debate’, Centre for Asian Pacific Affairs

Occasional Papers, November 1994. 25 Antonio Cassese, International Law in a Divided World (Oxford: Clarendon Press, 1986)

6

The legitimacy and relevance of the cultural relativist claim rests on the recognition of

indigenous and minority rights. The reason is simple: indigenous culture is the source

for identifying the type of rights that the members of that community share. Rights from

the cultural perspective are derived from the institutions, traditional symbols, proverbs,

songs and indigenous knowledge of the local people.26

Culture is supposed to enhance better protection of human rights (and vice versa).27

However, before it can effectively do so, it has to embody the voices of the people,

especially marginalised entities such as minorities. A basic criterion will be that the

rights should reflect the aspirations and input of the people, be grounded in their daily

lived experiences, and the enjoyment of those rights should likely lead to a holistic form

of development for them. 28

Responding to the community-state relationship argument, I contend that, in reality, the

community and the state are different institutions, and to some extent some times at

odds with each other. While the state depends on laws, rules and institutions, the

community, for the most part, relates to norms developed through forms of consensus

and enforced through mediation and persuasion.29

Within the community, one finds diverse groups distinguished along ethnic, linguistic

and other lines. For the sake of minority right analysis, we can identify two types of

such communities: those who prefer to remain on their ancestral lands and engage in

activities that reflect the cultural ethos of their ancestors and general way of life. These

are generally referred to as “indigenous” peoples.30 Secondly, there are those who travel

away from the ancestral lands to live in urban areas but still seek to preserve and

practice, to a limited extent, their linguistic, ethnic and cultural identities. These people

are referred to as minorities, recognised under Article 27 of the International Covenant

on Civil and Political Rights (ICCPR).

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.

There are others that cut across ethnic, linguistic and cultural lines. These broadly are

recognised as belonging to the community’s civil society.

26 K. Appiagyei-Atua, “Contribution of Akan Philosophy to the Conceptualisation of African Notions of

Rights,” (July 2000) Constitutional and International Law Journal of Southern Africa, 165. 27 Ibid. Also, Anita Inder Singh, “Diversity, human rights and peace” UN Chronicle, June-August,

2001: http://findarticles.com/p/articles/mi_m1309/is_/ai_80516650 (last accessed: Sept 29, 2008). 28 Michael Skinner, “Locating Indigenous Power: Cultural Relativism, Universalism And State

Sovereignty Preface Vol 74 New England International and Comparative Law Annual, 69. 29 A. Campbell, “International Law and Primitive Law,” Vol 8, No. 2 Oxford Journal of Legal

Studies, 169. 30 See, for example, article 1 of Convention (No. 169) concerning Indigenous and Tribal Peoples in

Independent Countries (Adopted on 27 June 1989 by the General Conference of the International Labour,

Organisation at its seventy-sixth session and entered into force on 5 September 1991).

7

6. Minority Rights Protection at the International Level

Internationally, in respect of indigenous peoples, or recognition of group rights to

culture, we have various declarations and conventions,31

Yet, some of the conventionally accepted definitions of minorities do not easily fit into

the African notion of a minority, which therefore may suggest some inherent

weaknesses in the international approach for the protection of minority rights in a

peculiar African context. For example, referring to the definition proposed by

Francesco Capotorti,32 it contains the idea of two main groups, one dominant and the

other non-dominant.33 However, looking at the ethnic composition of Africa, there are

several different minority groups located in the same country, with one (or some times

with a few more) as the dominant and the rest in non-dominant status.34 Another

important lacuna is the notion that the idea of preservation of culture, traditions, etc. is

not pursued in a vacuum, not in isolation from the issue of survival and development.

This defect is corrected in Jules Deschenes’ later definition and given prominence in

most international instruments.”35

Again, looking at another conventional definition of “minority group” by José Martínez

Cobo, 36 Special Rapporteur of the UN Sub-Commission on Prevention of

31 These include Declaration on the Rights of Indigenous Peoples, Indigenous and Tribal Peoples

Convention, 1989 (No. 169); Declaration on the Rights of Persons Belonging to National or Ethnic,

Religious and Linguistic Minorities; International Convention on the Elimination of all Forms of Racial

Discrimination (ICERD); Declaration on Race and Racial Prejudice; Convention against Discrimination

in Education; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based

on Religion or Belief; World Conference against Racism, 2001 (Durban Declaration and Programme of

Action). 32 UN Special Rapporteur on Minority Rights: “A group, numerically inferior to the rest of the population

of a State, in a non-dominant position, whose members- being nationals of the State- possess ethnic,

religious or linguistic characteristics differing from those of the rest of the population and show, if only

implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or

language.” Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN

Doc. E/CN.4/Sub.2/384/Add.1-7 (1977). 33 The idea of a minority being numerically inferior is generally debunked and also does not apply in the

African context, taking for example, the case of South Africa (numerically inferior Whites dominating

the majority Blacks and other races) and Rwanda (at some point in its history when the numerically

inferior Tutsis held power). 34 Samia Slimane, “Recognizing Minorities in Africa” (Briefing paper for Minority Rights Group):

www.minorityrights.org. 35 Dechenes: “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

and in law.” Proposal Concerning a Definition of the Term ‘Minority’ (UN Doc E/CN.4/Sub.2/1985/31

(1985) 36 Indigenous communities, peoples and nations are those which, having a historical continuity with pre-

invasion and pre-colonial societies that developed on their territories, consider themselves distinct from

other sectors of the societies now prevailing in those territories or parts of them. They form at present

non-dominant sectors of that society and are determined to preserve, develop and transmit to future

generations their ancestral territories, and their ethnic identity, as the basis of their continued existence

as peoples, in accordance with their own cultural patterns, social institutions and legal systems. Their

historical continuity may consist of the continuation, for an extended period reaching into the present, of

one or more of the following factors: a. Occupation of ancestral lands, or at least parts of them; b.

Common ancestry with original occupants of these lands; c. Culture in general, or in specific

manifestations (such as religion, living under a tribal system, membership of an indigenous community,

8

Discrimination and Protection of Minorities, it is noted that in the African context

“indigenousness” is not always tied to aboriginal status or original title to land.

Moreover, there are other traditional means of tracing common descent or ancestry,

such as through myths and fables.

In its report on indigenous peoples in Africa, the African Commission noted the

following as constituting key features and challenges facing indigenous peoples in

Africa: denial of access to ancestral lands and deprivation of right to maintain

indigenous economic lifestyle;37 discrimination by the mainstream as “backward”,

“uncultured”, etc (and described by the African Commission as an embarrassment to

modern African states);38 lack of access to justice;39 denial of cultural rights;40 lack of

access to political participation and non-recognition of rights in local Constitutions;41

denial of right to education and health.42

While these factors are not necessarily peculiar to African indigenous peoples only, the

degree to which these issues affect them may be different.

7. Globalisation and Minority Rights

In spite of the contention that human rights, democracy and development have merged

and forged a symbiotic relationship, it is my contention that it is not so. Though to a

large extent the idea of liberal democracy has helped to sustain Western society, the

concept has not proven effective and workable in most non-Western societies for a

number of reasons. One fundamental factor that is most often overlooked is its lack of

recognition of a pluralistic, multi ethnic-based notion of democracy, as opposed to the

majoritarian vision of the liberal international orthodoxy43 that has been suggested for

implementation in African and other non-Western states. This orthodoxy does not have

room for minority rights per se. Thus, attempts by Western states to impose its brand

of democracy on non-Western states are not in the interest of minority groups and may

not necessarily contribute to political stability and social cohesion.

What makes the democracy idea even more precarious is the fact that it has been

watered down to a notion of “market democracy”, which aims more at ensuring the

efficacy of the democratic structure to promote market efficiency.44 This notion of

dress, means of livlihood and lifestyle); d. Language (whether used as the daily language, as mother-

tongue, as habitual means of communication at home or in the family, or as the main, preferred, habitual,

general or normal language); e. Residence in certain parts of the country, or in certain regions of the

world; f. Other relevant factors, Study on the Problem of Discrimination Against Indigenous Populations,

UN Doc. E/CN.4/Sub.2/1986/Add.4. 37 Protected by articles 20, 21 and 22 of the African Charter on Human and Peoples’ Rights. 38 African Commission, supra note 9 at 17, 18. 39 Protected by articles 3,4,5,6 and 7 of the African Charter. Ibid, 18. 40 Article 22 of the African Charter. Ibid. 41 Article 13(1) of the African Charter. Ibid, 19. 42 Articles 13(2), 17(1) and 16(2). Ibid. 43 D. Rothchild, Liberalism, Democracy and Conflict Management: The African Experience, paper

presented at Conference on “Facing Ethnic Conflicts: Perspectives from Research and Policy-Making”,

Bonn, Germany, 14–16 December 2000, <www.zef.de/download/ethnic_conflict/rothchild.pdf>. 44 Noam Chomsky Market Democracy in a Neoliberal Order: Doctrines and Reality. Davie Lecture,

University of Cape Town, May 1997 (www.bigeye.com/chomsky.htm. Last accessed: Sept 29, 2008).

9

democracy is defined, among others, by such nebulous concepts as transparency,

empowerment, good governance, etc.45

It is this form of governance or democratic ethos derived from the liberal notion of

rights, and carried over from the Enlightenment era, that is being imposed on Africa

and other developing countries. Thus, in the New Partnership for Africa’s Development

(NEPAD) document,46 for instance, African states make an undertaking “to respect the

global standards of democracy”.47 These seem to find expression in the Declaration on

Principles Governing Democratic Elections in Africa.48

However, where sovereignty is vested in an authority “that proclaims its competence

and willingness to settle all issues of collective action facing the society”49 good

governance, for example, becomes unitary in focus and an ineffective tool to promote

inclusive governance. Good governance then loses any relevance it may have for

application in communities that are multi-ethnic in composition and has serious

minority rights issues to grapple with.

Africa has come a long way in recognising minority rights. Yet, there is still more to be

done, particularly in designing and implementing peculiar ideas of democracy that

gives space for minorities. Adopting such a minority-friendly approach will save Africa

the conflagration associated with civil wars which are related to ethnicity. For example, in its report on conflicts in Africa, the Committee on Elimination of Racial

Discrimination (CERD), among others, expressed “its alarm at the growing mass and

flagrant violations of human rights of the peoples and ethnic communities in Central

Africa, in particular, massacres and even genocide perpetrated against ethnic

communities, and resulting in massive displacement of people, millions of refugees,

and ever deepening ethnic conflicts”.50 As Christopher J. Bakwesegha, a representative

45 The UNDP policy document Governance for Sustainable Human Development defines governance as:

“[T]he exercise of economic, political and administrative authority to manage a country’s affairs at all

levels. … Good governance is, among other things, participatory, transparent and accountable. It is also

effective and equitable. And it promotes the rule of law. Good governance ensures that political, social

and economic priorities are based on broad consensus in society and that the voices of the poorest and

the most vulnerable are heard in decision-making over the allocation of development resources”,

<magnet.undp.org/Docs/policy5.html>. 46 New Partnership for Africa’s Development (NEPAD). NEPAD is a vision and strategic framework for

Africa’s Renewal. The NEPAD strategic framework document arises from a mandate given to the five

initiating Heads of State (Algeria, Egypt, Nigeria, Senegal, South Africa) by the then Organisation of

African Unity to develop an integrated socio-economic development framework for Africa. The 37th

Summit of the OAU in July 2001 formally adopted the Strategic Framework Document. 47 NEPAD Document, ibid., para. 47. 48 OAU/AU Declaration on Principles Governing Democratic Elections in Africa, AHG/Decl. 1

(XXXVIII). 49 Shavikumar, supra note 18 at 12. 50 The Committee on the Elimination of Racial Discrimination, Statement on Africa : 20/08/99, A/54/18,

55th session 2–27 August 1999, para. 24, reiterating its recent decisions, declarations and concluding

observations, such as decision 3 (49) of 22 August 1996 on Liberia; resolution 1 (49) of 7 August 1996

on Burundi; decisions 3 (51) of 20 August 1997, 1 (52) of 19 March 1998, and 4 (53) of 18 August 1998

on the Democratic Republic of the Congo; the declaration of 13 March 1996 on Rwanda; the concluding

observations on Rwanda of 20 March 1997; the concluding observations on Burundi of 21 August 1997;

decisions 4 (52) of 20 March 1998, 5 (53) of 19 August 1998 and 3 (54) of 19 March 1999 on Rwanda;

decision 5 (54) of 19 March 1999 on the Sudan, which were the results of the Committee’s consideration

of the ethnic conflicts in thesesStates parties under its early warning and urgent action procedures within

the context of the Convention. It also referred to the Secretary-General’s report on Causes of conflict and

10

of the OAU, laments, “[t]here is hardly any country in Africa that has been spared the

wrath of ethnic conflicts in terms of loss of lives, destruction of property as well as

human displacement”.51

Perhaps, it was in response to this linkage established between ethnicity and conflict

that the Constitutive Act of the African Union (AU), for example, among others, has

replaced the concept of “non-interference” which was misapplied by the OAU with that

of the principle of non-indifference which allows the AU to intervene in Member States

where egregious violations of human rights bordering on genocide, war crimes, etc are

being perpetrated. 52 This provision relates most to minority peoples since in most cases

they are at the receiving end of such kinds of atrocities.

But it is important to note that this key provision does not deal with minority rights

issues directly. That is unless a situation degenerates into a crisis, intervention would

not take place. It is not proactive but reactive.

As has been acknowledged by the African Commission, one of the challenges facing

minorities in Africa is representation in governance. Lack of representation, in the view

of the Commission in the Katangese case, could form the basis for self-determination

by an oppressed minority group. It noted:

In the absence of concrete evidence of violations of human rights to the point that the territorial

integrity of Zaire should be called to question and in the absence of evidence that the people of

Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the

African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of

self-determination that is compatible with the sovereignty and territorial integrity of Zaire.53

A careful interpretation of this paragraph indicates that where two conditions are not

fulfilled by a government a people may exercise the right to external self-determination

(that is, take an action which will not be compatible with the sovereignty and territorial

integrity of an African State). These are where egregious violations of human rights

take place to the extent of affecting the territorial integrity of an African State; and, two,

where a people are denied the right of participation in government.

This interpretation, though, may not be wholly accepted as the Commission seemed to

give the right with one hand and take it back with the other. Thus, in the same breath,

it turned round to contend that it believes “self-determination may be exercised in any

of the following ways: independence, self-government, local government, federalism,

confederalism, unitarism or any other form of relations that accords with the wishes of

the promotion of durable peace and sustainable development in Africa (A/52/871-S/1998/318, dated 13

April 1998), which noted, inter alia, that “the main aim, increasingly, is the destruction not just of armies

but of civilians and entire ethnic groups”. 51 It is on record that in the last thirty years, more than thirty wars have been fought in Africa. In 1996

alone, 14 of the 53 Member States of the OAU were affected by armed conflicts, accounting for more

than half of war-related deaths worldwide and resulting in more than eight million refugees and displaced

persons. Most of these states bear an ethnic dimension. C. J. Bakwesegha, Keynote Address on “The Rise

of the Ethnic Question”, Bonn, Germany 13–16 December 2000. 52 Under Article 4(h), the Union reserves the right to intervene in a Member State “pursuant to a decision

of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against

humanity”. 53 Paragraph 6 of the African Commission decision in Katangese Peoples' Congress v. Zaire, African

Commission on Human and Peoples' Rights, Comm. No. 75/92 (1995).

11

the people but fully cognisant of other recognised principles such as sovereignty and

territorial integrity.”54 Furthermore, it noted in paragraph 5 of its decision: “The

Commission is obligated to uphold the sovereignty and territorial integrity of Zaire,

member of the OAU and a party to the African Charter on Human and Peoples’

Rights.”55

But the truth remains that where the pre-conditions are not fulfilled and attempts to

exercise the right to self-determination (whether internal or external) is equally

suppressed, the end-result is inexorably political violence.

Thus, it is important to liberalise the democratic space further to enable marginalised

entities to be brought in as the majoritarian orthodoxy arrangement does not bode well

for the future stability and development of the African continent. Rothchild cites the

Burundi example, where at the urging of the US and various non-governmental

organisations democratic elections were called for and held in Burundi in 1993–94 in

an effort to bring ethnic peace between the Hutus and Tutsis. However, the plan failed.

It rather paved the way for the resumption of inter-group violence in Burundi. The

reasons for the failure of the Burundi plan was that ethnic differences were exploited

by the local elite who have always felt threatened by regular political change through

the ballot box. The second reason is that political participation was emphasised over

and above, first, the formation of strong civic institutions.56 Rothchild states:

Clearly, to the extent this preference for liberal democracy becomes an orthodoxy and fails to

adjust to local realities and alternative visions, it can sometimes complicate the process of

managing conflict in ethnically-divided societies.

In place of the libertarian majoritarian orthodoxy, it is proposed that polycentric

systems of governance be adopted. Polycentric systems of governance thrives on

freeing space for minorities to be recognised on the political structure and given the

necessary space to assert themselves. “Polycentric designs for governance stress

processes of self-coordination [and cooperation] among multiple, independent, and

overlapping problem-solving units, with each capable of making adjustments to other

such units, as coordinated through a general system of rules.”57 This affords problem-

solving units within a polycentric system greater discretion to solve local problems

locally.58 It also gives room for the realisation of the potential of the local people, and

thereby allows them to acquire agency, self-confidence and recognition of their worth

and dignity. For that matter, it is not merely a question of recognising the

underdevelopment and poverty of minorities and seeking to help them. It is a question

of giving them space to contribute to helping themselves.

Adopting such an approach will free democracy to truly empower people to transcend

their personal interests and meet as a group to articulate needs, assess capacities, impose

duties and make rights claims or assert the same in order to deal with their needs. It will

54 Paragraph 4 ibid. 55 Paragraph 5 ibid. The Commission came back full circle in its Advisory Opinion Advisory Opinion

of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the

Rights of Indigenous Peoples, Adopted by the African Commission on Human and Peoples’ Rights at

its 41st Ordinary Session held in Ma y 2007 in Accra, Ghana, para 18. 56 Cf. Rothchild, supra note 54, p. 5. 57 Ibid. 58 Ibid.

12

in turn offer disadvantaged groups and marginalised entities the space to find through

this interaction the means to interpret their experiences, the injustices and stumbling

blocks to their development, realise their self-hood and contribute to community

development. The process involves the exercise of the right to freedoms of association,

movement, assembly, etc., which helps people to acquire agency, recover self-hood and

earn self-confidence.

Furthermore, it is proposed that a protocol to the African Charter on Human and

Peoples’ Rights, similar that done for women; or, a separate Charter (as reflected in the

African Charter on the Rights and Welfare of Children) be made for minorities.

Creating such a document will be in line with international regional trends. It will entail

detailed provisions for minorities and provide a more poignant tool for minorities to

assert their rights.

However, a key issue that the proposed Protocol or Charter on the Rights of Minority

Peoples in Africa should address is the right of minorities to external self-determination

subject to the fulfilment of certain critical conditions. The current position of the

African Commission, as expressed in its advisory opinion is that the uti possedetis

principle should continue to be held sacrosanct. This position, though, is contrary to

international law which recognises self-determination as a fundamental right.59

Secondly, such a Protocol or Charter should deal with minorities in general,60 not

simply indigenous peoples.

8. Conclusion

The paper has sought to analyse the critical role of the relationship between human

rights, democracy and development, particularly as it affects minorities in Africa, In

doing a historical trajectory of minority rights concerns from the colonial to the post-

colonial eras, it notes that while the overarching influence and power wielded by the

State in Africa has been weakened under the “era of democracy” it has not actually

translated into empowering the people, particularly minorities.

It is also recommended that for democracy to thrive in Africa, it should be located in

broad-based, inclusive national governments represented by all ethnic groups in the

country, no matter how large and diverse. This may include automatic reservation of

certain parliamentary seats to disenfranchised and marginalised minority groups.

Empowering minority groups will enable them to assert their traditional rights. The

exercise of these rights would not only lead to a psychological liberation of minorities, but

would also empower them to protect their gains and human dignity against abuse.

The solution to the building of effective democratic structures also lies in adopting

traditional African approaches to establishing indigenous civil societies which link the

urban to the rural communities, and expressed in town/village improvement

associations. Such associations have proved effective in supporting community-based

projects in rural communities, keeping the rural communities informed about

developments in the city, etc.

Finally, it is time Africa brought into being a separate Protocol or Charter on the Rights

59 Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press,

1995) 60 As recognised under article 27 of the ICCPR.

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of Minority Peoples in Africa.