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Cite as: Eric Allen Engle,  Westphalian Procedure, Post-Westphalian Substance: Alien Torts in Bolivia, 17 E. Afr. J. Peace & Hum. Rts. 264-268 (2011).


EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS

Journal of the Human Rights and Peace Centre (HURIPEC)

Faculty of Law, Makerere University

Volume 17, Number 1

June 2011

Copyright © 2011 by HURIPEC

EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS

Volume 17 Number 1, 2011

EDITORIAL COMMITTEE

FACULTY OF LAW, MAKERERE UNIVERSITY

Managing Editor

J. Oloka-Onyango

HURIPEC

Editor

Denis A. Katebire

HURIPEC

 

COMMITTEE MEMBERS

Samuel Tindifa

Fredrick W. Jjuuko

Hadija Namyalo

HURIPEC

Law & Jurisprudence

Public & Comparative Law

Sylvia Tamale

Christopher Mbaziira

Esther D. Naggita

Law & Jurisprudence

HURIPEC

Law & Jurisprudence

Henry Onoria

Robert Kirunda

Phionah Muhwezi-Mpanga

Public & Comparative Law

Public & Comparative Law

Commercial Law

Assistant Editor

Francis X. Birikadde

HURIPEC

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EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS

Volume 17 Number 1, 2011

INTERNATIONAL ADVISORY BOARD

Selina Goulbourne

Winston P. Nagan

Hope Lewis

Coventry University

University of Florida

Northeastern University

Penelope Andrews

Patricia Kameri Mbote

Fareda Banda

CUNY Law School

University of Nairobi School of Oriental & African Studies

Chris Maina Peter

Karin Arts

Makau wa Mutua

University of Dar es Salaam

Institute of Social Studies

SUNY, Buffalo

Gudmundur Alfredsson

Amina Mama

Peter R. Schmidt

University of Strasbourg

University of California, Davis

University of Florida

Christof Heyns

Onalenna Selolwane

Abdul Paliwala

University of Pretoria

University of Botswana

University of Warwick

Deepika Udagama

 

J. Purusi Sadiki

University of Colombo

 

University of Ghent

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EAST AFRICAN JOURNAL OF PEACE & HUMAN RIGHTS

Volume 17 Number 1, 2011

The East African Journal of Peace and Human Rights, ISSN: 1021-8858, is published twice annually by the Faculty of Law, Makerere University under the auspices of the Human Rights and Peace Centre (HURIPEC). Contributions for publication should be original. The text of the article, including footnotes, should be double-spaced. Footnotes should be placed at the bottom of each page and citations should follow A Uniform System of Citation (15th ed). Contributors are requested to indicate their professional, academic, and other qualifications as well as their e-mail and physical address for communication. Published authors will receive a free copy of the Journal in which their contribution appears.

Works published in the Journal do not necessarily represent the views of the Editors, the International Advisory Board, or the Human Rights and Peace Centre.

This journal should be cited as EAST AFR. J. PEACE HUM. RIGHTS. Further inquiries should be directed to:

Denis Asiimwe Katebire

HURIPEC

Faculty of Law

Makerere University

P.O. Box 7062

Kampala

UGANDA

Telephone: (256-41) 532-954

Fax No: (256-41) 543-110 or 532-956

E-mail: [email protected]

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TABLE OF CONTENTS

ARTICLES

INTERNATIONAL HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW IN SITUATIONS OF ARMED CONFLICT

M.O.A. Ashiru . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MAINSTREAMING HUMAN RIGHTS INTO ALL NGO WORK

Maria Nassali . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

THE GHOST OF THE ORGANIZATION FOR AFRICAN UNITY (OAU) HAUNTS AFRICA

Josephine Ndagire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

INTERNATIONAL HUMAN RIGHTS FRAMEWORK ON ACCESS TO

CONTRACEPTION FOR ADOLESCENTS IN AFRICA

Ebenezer Durojaye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

CIVIL SOCIETY PARTICIPATION IN HEALTH SECTOR PLANNING,

 

BUDGETING, AND MONITORING IN SELECTED DISTRICTS

 

IN UGANDA

 

Sandra Kiapi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

105

HUMAN RIGHTS-BASED ACCOUNTABILITY FOR HEALTHCARE IN

 

UGANDA

 

Tenywa Aloysius Malagala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

124

COURTS AND THE NEED FOR DYNAMISM IN THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS: A NIGERIAN PERSPECTIVE Babafemi Odunsi & Folake Olaleye . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

THE QUEST FOR POVERTY ALLEVIATION IN NIGERIA: THE NEED FOR A RIGHTS-BASED APPROACH

O.A. Orifowomo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

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FEDERALISM AND LEGAL PLURALISM IN ETHIOPIA: PRELIMINARY OBSERVATIONS ON THEIR IMPACTS ON THE PROTECTION OF HUMAN RIGHTS

Getachew Assefa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

THE RIGHT TO LEAVE AND ITS RAMIFICATIONS IN ERITREA

Simon M. Weldehaimanot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

POLITICIZATION OF LAND LAW AND GENDER RELATIONS IN UGANDA:

A CASE STUDY

 

Godard Busingye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

262

A HISTORICAL PERSPECTIVE ON LAND TRANSFER: “SHOWING THE

LAND,” SURVEY, AND REGISTRATION IN (B)UGANDA FROM 1900-1950

Holly E. Hanson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

COMMENT

WESTPHALIAN PROCEDURE, POST-WESTPHALIAN SUBSTANCE: ALIEN TORTS IN BOLIVIA

Eric Engle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

COURT DECISIONS

REVIEW OF MAJOR DECISIONS ON FUNDAMENTAL RIGHTS AND FREEDOMS IN UGANDA, 2008–2009

Henry Onoria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

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INTERNATIONAL HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW IN SITUATIONS OF ARMED CONFLICT

M.O.A. Ashiru*

ABSTRACT

International Human Rights Law and International Humanitarian Law are two distinct areas of law both in origin and development, yet over the years Human Rights Law has had a major impact on International Humanitarian Law. This article considers the areas in which International Human Rights Law has played a part in armed conflict situations.

I. INTRODUCTION

Human rights law as embodied in international human rights instruments and humanitarian laws as embodied in the Geneva Conventions of 1949 and the Additional Protocols thereto, prohibiting attacks on civilian populations are systematically ignored and violated in armed conflict situations and military occupation, by armed and security forces and other parties to armed conflicts. By the end of the twentieth century, there was a dramatic increase in the number of countries which were involved in violent conflicts and wars. There was also a dramatic increase in the number of civilians affected by the deliberate and systematic violation of human rights. This was witnessed, for example, in wars which occurred in countries such as Yugoslavia, Rwanda, Somalia, Iraq, Turkey and Liberia, and Sierra-Leone, thus reminding us of the cruelty, suffering, destruction and death which occur in armed conflict situations.

For many decades now, there have been extensive debates on the application of human rights law to armed conflict situations, thus focusing on the relationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL). Even though it is now recognized that IHRL applies in armed conflict situations, there are certain obstacles which are encountered in the practical application of this law. This arises in situations where rights such as the right to life, the right to freedom from torture and other cruel and inhuman or degrading treatment or punishment, economic, social and cultural rights apply to both these bodies of law.

This article considers how human rights law is applied in armed conflict situations and

* Lecturer, Faculty of Law, Obafemi Awolowo University. Email:<[email protected]>

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the practical problems encountered in its application. It also considers how these two bodies of law can work concurrently and also complement and reinforce each other.

II. CONSIDERATION OF BOTH BODIES OF LAW AND THE RECOGNITION OF HUMAN RIGHTS LAW IN ARMED CONFLICT SITUATIONS

IHL and IHRL vary in terms of their origin and the situations in which they apply. IHL applies in times of armed conflict, whether international or non-international.1 It binds parties to the conflict, thus in the case of international conflicts, IHL must be observed by the States involved whereas in internal conflicts IHL binds the government as well as the groups fighting against it or among themselves. IHL aims to protect not only people who do not or are no longer taking part in hostilities but also civilians. Thus, it is necessary that the parties to a conflict distinguish between combatants and non- combatants and also between military and non-military targets. Their object of attack must not be on the civilian population as a whole neither on an individual civilian. They are also prohibited from attacking military objectives if that would cause disproportionate harm to civilians or civilian objects.

On the other hand since human rights are rights which are inherent to human beings, IHRL protects the individual at all times from abuse by the State2 and thus it applies both in times of peace and in armed conflict. It lays down rules that bind States in their relations with individuals. There is however a growing body of opinion which remains unsettled that organized groups especially where they exercise government-like functions must also respect human rights. It is yet to be seen how the law will evolve in this regard.

Despite their differences, these two bodies of law share a common ideal that is the protection of the lives, health and dignity of individuals. Also many of their guarantees are identical, such as the protection of the right to life, freedom from torture

1.International conflicts are wars involving two or more states, they can also be wars of liberations, regardless of whether a declaration of war has been made or whether the parties involved recognize that there is a state of war. Non-international armed conflicts on the other hand are those in which government forces are fighting against armed insurgents, or rebel groups are fighting among themselves.

2.See, e.g., Article 2, International Covenant on Civil and Political Rights, 99 U.N.T.S.171; Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms, U.N.T.S. 123; and Article 27, American Convention on Human Rights, 1144 U.N.T.S.123.

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and ill treatment and the protection of family rights.3 The recognition by universal and regional human right bodies that human rights law applies to armed conflict situations bridged the gap between the separation of the law of peace and the law of war.4 The concurrent application of these two bodies of law was expressly recognized, for example, by the International Court of Justice in its Nuclear Weapons Advisory Opinion on the application of human rights in situations of armed conflict, with respect to the International Covenant on Civil and Political Rights (ICCPR). It rejected the position that the Covenant could only be applied in peace time and observed that:

… the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provision may be derogated from in time of national emergency. Respect for the right to life is not, however such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. … Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.5

The Court has held on to this view, which is observed from one of its fairly recent advisory opinions. In the Advisory Opinion on the Legal Consequences of a Wall in

3.Debates on the relationship between Human Rights Law and International Humanitarian Law tend to focus on civil and political rights in particular with regard to the use of force and deprivation of liberty, more than economic, social and cultural rights even though these latter rights are equally as important as the former ones. Economic, social and cultural rights where humanitarian law is concerned, includes issues such as ensuring adequate food supplies and protecting health during armed conflict. However when these issues are being dealt with, the focus of attention is usually placed on the relevant international humanitarian law rules than the human rights point of view. Article 6 of the Geneva Convention (IV), relative to the Protection of Civilian Persons in Time of War, dealing with a number of welfare provisions, does not apply beyond a year after the general close of military operations. It is likely that in such cases human rights law may fill the gap when the occupying power continues to exercise government functions.

4.These are various international tribunals: the International Court of Justice, the UN Human Rights Committee, the European Court of Human Rights, the Inter-American Commission on Human Rights and national courts.

5.ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports 1996, ¶ 25.

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the Occupied Palestinian Territory:

… the court consider[ed] that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.6

There are also international treaties and instruments, such as the Convention on the Rights of the Child of 1989,7 the Rome Statute of the International Criminal Court8 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 2000,9 which have incorporated or drawn from both human rights and international humanitarian law provisions.

III. DEROGATION AND NON-DEROGATION

IHL is non-derogable as it deals with an exceptional situation, namely armed conflict, (the only exception can be found in Article 5 of the Fourth Geneva Convention). Although IHRL applies at all times, that is, during peacetime and in situations of armed conflict, there are some IHRL treaties which permit a State Party to derogate from certain rights in situations of public emergency threatening the life of the nation, which includes situations of armed conflict. This is clear from the wordings of such treaties

6.ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, ¶ 106.

7.Art. 38, Convention on the Rights of the Child, 1989, 1577 U.N.T.S. 3. What is peculiar is that this article, which applies in peacetime, also contains provisions, which are applicable in armed conflict situations thus demonstrating the overlap between the law of peace and that of war, and the necessity of taking international human rights law into consideration. Article 77 of Additional Protocol I to the Geneva Conventions which provides that children who have not attained the age of fifteen years do not take direct part in hostilities and, in particular should not be recruited in the armed forces is replicated in Articles 38(2), (3) and (4).

8.Rome Statute of the International Criminal Court, 2002, 2187 U.N.T.S. 3.

9.Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, 2000, 1577 U.N.T.S. 3.

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as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights, which expressly allows for derogation of certain rights “in time of war or other public emergency.”10 On the other hand, for example, the ICCPR in its Article 4 (which provides for derogation) makes no mention of war. The omission was deliberately made in the course of drafting the Covenant. Where a derogation clause exists a State Party may only derogate from its obligations under the treaty,

to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.11

Derogation cannot be invoked lightly as it must be proportional to the crisis at hand and must not be introduced on a discriminatory basis. It must not contravene other international law rules, which includes IHL rules. In the case of Lawless v. Ireland, for example, the applicant who was a member of the Irish Republican Army claimed that his detention was a violation of Article 5 of the European Convention on Human Rights. The court considered the Irish Governments’ specific measures of derogation and found that they could be characterized as measures strictly required by the exigencies of the situation.

There are however certain rights, which are non-derogable, that is they are to be applied in all circumstances, without exception. For example under the ICCPR, Articles 6 (right to life) and 7 (torture or cruel, inhuman or degrading treatment) may not be derogated from.12 It is a requirement that derogations must be officially

10.Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 27, American Convention on Human Rights. Public emergency was defined by the European Commission on Human Rights as “a situation of exceptional and imminent danger or crisis affecting the general public … constituting a threat to organized life of the community … while a different approach, stressing on the term “war” retained a “public emergency” as a situation “tantamount to war.”

See, ECHR, Lawless v. Ireland, 1960-61.

11.Article 4, International Covenant on Civil and Political Rights. See also, Article 15, European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 27, American Convention on Human Rights.

12.Article 4(2) of the Convention provides a full list of the articles, which may not be derogated from. The Convention for the Protection of Human Rights and Fundamental Freedoms corresponding articles to this are found in Articles 2 and 3 (derogation only allowed in respect of death resulting from lawful acts of war), and the American Convention on Human Rights in Articles 3 and 4.

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proclaimed and notified to the other States Parties to the treaties.13 This provides a means of ensuring compliance with IHL and IHRL where they overlap.

IV. EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS

OBLIGATIONS

One of the problems in applying human rights law in international armed conflict including situations of occupation is with regard to the extra-territorial obligation of a State, as the State would likely be operating outside its borders. As human rights must continue to apply even after the outbreak of the armed conflict, the question thus arises as to whether human rights obligations can extend to actions of State forces outside the State’s recognized borders.

A. Effective Control over a Territory

There have been a number of cases where human rights obligations have been applied to areas under the effective control of the State. This also includes situations of military occupation and troops taking part in peacekeeping operations. The rationale behind applying human rights law extraterritorially to situations where States have effective control over a territory, is to effectively and practically ensure respect for human rights. Consideration is given as to the application of various human rights treaties where such situations arise. The UN Human Rights Committee has considered the application of Article 2(1) of the ICCPR14 with regard to respecting and ensuring the Covenant rights

13.Article 4(3) International Covenant on Civil and Political Rights, Article 15(3) Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 27(3) American Convention on Human Rights. There may be instances where the human rights bodies concede that the situation on the ground in relation to the case being decided by them called for exceptional measures, yet no declaration of a derogation has been addressed to the appropriate body. This was the situation in the cases of Isayeva,

Yuzupova & Basayeva v. Russia (ECHR, Isayeva, Yuzupova, Bazayeva v. Russia, 57947/00, 57948/00, 57949/00, 24 February, 2005, 129) and Isayeva v. Russia (ECHR, Isayeva v. Russia, 57950/00, 24 February 2005, 128) both of which were decided by the European Court of Human Rights. These cases concerned the conduct of hostilities during military operations and what measures should have been taken to avoid or reduce the risk of incidents involving the civilian population and damage to property. Since no declaration under Article 15 had been addressed to the Council of Europe, the operations which had been conducted by the Federal Army were evaluated by the court as occurring in a normal legal contest.

14.Article 2(1) provides that “each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or opinion, national or social origin, property or other status.”

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to all persons who may be within the State Party’s territory and to all persons subject to the State Party’s jurisdiction. In its General Comment 31, the Committee held that by Article 2(1) of the Covenant, State Parties are required to:

respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.

The enjoyment of these rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons. The Committee then went on to state that the principle is also applied to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace- enforcement operations.15

The Committee has confirmed its position in particular to situations of military occupation,16 and also with regard to troops taking part in peacekeeping operations.17 This was the case in Northern Cyprus and in the occupied Palestinian territories. The International Court of Justice adopted a similar approach to that of the Committee with regard to the ICCPR, in its 2004 Wall Advisory Opinion. In interpreting Article 2(1) of the Covenant, the court found that reference to the object and purpose of the Covenant implied that the Covenant is applicable in respect of acts done by a State Party to the Covenant in exercise of its jurisdiction outside its own territory.18

15.General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP/4/Rev.6 (2004), para. 10, available at <www.unhchr.ch/tbs/doc.nsf(Symbol)CCPR.C.21.Rev.1.Add.13.En?Opendocument>, (accessed on 23 March 2009).

16.Concluding Observations on Cyprus, UN Doc. CCPR/C/79/Add 39, Sept. 21, 1994, ¶ 3; Concluding Observations on Israel, 11, UN Doc. CCPR/CO/78/ISR, Aug. 21, 2003.

17.Concluding Observations on Belgium, CCPR/C/79/Add99, Nov. 19, 1998, ¶ 17; Concluding Observations on Belgium, CCPR/CO?81?BEL, Aug. 12, 2004, ¶ 6.

18.Wall case, supra note 6, ¶¶ 108-111.

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1. Extraterritorial Applicability of the European Convention on Human Rights.—In considering if an applicant’s human rights have been violated in an extraterritorial situation, the European Commission of Human Rights and the European Court of Human Rights have considered the meaning of “jurisdiction” under Article 1 of the Convention.19 This is because the exercise of jurisdiction is considered a necessary condition for Contracting States to be able to be held responsible for acts or omissions imputable to it, which gives rise to an allegation of the infringement of rights and freedoms set forth in the Convention.20

The concept of “jurisdiction” for purposes of Article 1 of the Convention is thus taken to reflect its meaning in public international law. From the standpoint of public international law, the European Commission of Human Rights and the European Court of Human Rights have held that the term “within their jurisdiction” would not be equivalent to or limited to the national territory of the High Contracting Parties. Their responsibility can also be engaged because of acts of their authorities producing effects outside their territory. This would depend on whether or not that State had effective control over the territory in question.

The case of Cyprus v. Turkey,21 concerned the occupation of Northern Cyprus by Turkish forces in the aftermath of a large-scale military intervention, which occurred in July 1974. Cyprus claimed that Turkey had violated several rights guaranteed by the Convention when it invaded it in July 1974 and occupied Northern Cyprus. The European Commission on Human Rights held that the Contracting States “are bound to secure the rights and freedoms of all persons under their actual authority and responsibility, not only when that authority is exercised” within their own territory but also when it is exercised abroad. The European Court of Human Rights in cases such as Loizidou v. Turkey22 and Issa & Others v. Turkey23 also applied this principle of effective control. Loizidou v. Turkey concerned human right violations, which arose out of a military occupation. The applicant and the Cypriot government maintained that ever since the Turkish occupation of northern Cyprus, the applicant had been denied access to her property and as a result of this, lost all control over it.24 The court stated:

19.Article 1 of the European Convention on Human Rights states that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedom defined in Section 1 of this Convention.”

20.ECHR, Issa & Ors v. Turkey, App. No. 31821/96 (Final), 30 March 2005, ¶ 66.

21.ECHR, Appl. No. 25781/94, 10 May 2001.

22.ECHR, Preliminary Objections, 23 February 1995, 103 ILR 622, ¶¶ 62-64.

23.See supra note 20.

24.Supra note 22.

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Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when, as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.

The court in Issa & Ors v. Turkey distinguished its own decision from those in Loizidou v. Turkey and Cyprus v. Turkey. The applicants in the Issa case complained of the alleged unlawful arrest, detention, ill treatment and subsequent killings of their relatives in the course of a military operation conducted by the Turkish army in northern Iraq in April 1995. The court found that the armed forces of Turkey in the latter two cases were in total more than 30,000 personnel, which was no less than that alleged by the applicants in the Issa case. However the difference was that in the latter two cases, the troops in northern Cyprus were present over a much longer period of time and stationed throughout the whole territory of northern Cyprus. In addition to this, the area was patrolled and had checkpoints on all the main lines of communication between the northern and southern parts of the island. In the Issa case, on the other hand there was no evidence that the Turkish troops conducted operations in the area where the alleged killings took place.25 This case thus gives support to the fact that effective control does not mean control over every act or part of the territory, but that effective overall control over a territory is sufficient.

In the case of Bankovic v. Belgium,26 the court dismissed as inadmissible an application by the relatives of individuals who were killed in the 1999 bombing of a Belgrade building of the Radio Television of Serbia (RTS) during the North Atlantic Treaty Organization (NATO) air strikes against the Federal Republic of Yugoslavia (FRY). The application was brought against all the European NATO member states, which are also parties to the Convention for the Protection of Human Rights and Fundamental Freedoms. The FRY was not, and is still not, a party to the Convention. The applicants argued that the respondent States’ control over FRY airspace was “nearly as complete as Turkey’s control over the territory of northern Cyprus” and that this brought the RTS strike within the jurisdiction of the respondent States. This

25.ECHR, supra note 20, ¶ 75-76.

26.ECHR, Bankovic & Ors v. Belgium & 16 Other Contracting States, Case No. 52207/99, 12 December 2001.

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argument was dismissed by the Grand Chamber, which held that NATO did not have effective overall control over FRY since the notion of jurisdiction under Article 1 of the Convention was primarily territorial. That a State could not exercise jurisdiction on the territory of another state without the latter’s consent, invitation and acquiescence, unless the former is an occupying State in which case, it can be found to exercise jurisdiction in that territory, at least in certain respects. That in the absence of effective ground control of a territory, precision air strikes and control of airspace did not create responsibility under the Convention.27

Before the decision of the Grand Chamber on subsequent cases regarding jurisdiction on extraterritorial application of the Convention, its decision regarding this issue in the Bankovic case was taken as being restrictive. The post-Bankovic cases such as Iiascu v. Moldova & Russia and Oclan v. Turkey28 clarified this. Iiascu & Others v. Moldova & Russia29 concerned human rights violations in Transdniestria, an area of Moldova subject to a separatist regime supported by Russia. By a majority of 16 to 1 the Grand Chamber held that Russia exercised jurisdiction whilst by 11 to 6 votes Moldova also exercised jurisdiction. Russia was found to be responsible for human rights violations by the court, on the basis of the presence of a small number of its troops. However, since Moldova lacked effective control, it was not held responsible for the human rights violations save to the extent that they arose out of failures by Moldova to comply with its positive obligations:

to take diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.30

Effective control for purposes of human rights appears to be broader and more flexible than that of occupation in humanitarian law, where the obligations of the occupying

27.Id. This case also illustrates the importance of being a party to a treaty in order to benefit from it. The FRY was not, and is still not a party to the Convention, which meant that its citizens were deprived of any rights that they were previously granted and therefore had no claim to a remedy for human rights grievances. Thus, a particular action taken by a contracting state in the territory of another state would not be governed by the first states Convention obligations if the second state is also not a party to the Convention.

28.Grand Chamber Judgment, 12 May 2005.

29.ECHR 2004-VII. The reason why Russia was found responsible was because it had set up the regime, which remained under its effective authority or decisive influence. Russia also gave that regime military, economic, financial and political support.

30.Referred to in Al-Skeni v. Sec. of State for Defence [2005] EWCA (Civ) 1609, ¶ 116.

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State are absolute. From case law decided by the European Court of Human Rights, the degrees of control under human rights law varies and so also the obligations of the State. This was noted in the comparison made between the cases of Issa & Ors v. Turkey, Loizidou v. Turkey and Cyprus v. Turkey.

On the other hand, in the Al-Skeini case,31 though British troops were said to occupy two provinces of Iraq in 2003, they had no effective control in a third province for the purpose of applying the European Convention on Human Rights, as the United Kingdom possessed no executive, legislative or judicial authority in that province. The British troops were only in that province to maintain security in a situation on the verge of anarchy. The appellants in this case were relatives of Iraqi civilians who died by the actions of British soldiers in southern Iraq in the latter part of 2003 (between the cessation of major combat operations and the handover of sovereignty to the Iraqi interim government). Five of the deceased were shot in the course of security operations (one in cross-fire); the sixth deceased died following gross ill treatment whilst in custody in a United Kingdom military detention facility.

2. The Inter-American Commission of Human Rights.—The Commission recognizes jurisdiction over acts committed outside a State’s territory. This is based on the fact that since human rights are inherent to all human beings, it is for the States to guarantee a person under their jurisdiction the protection of their human rights. This includes any person subject to its authority and control.32

B. Power over a Person

Human rights obligations will also apply extraterritorially where state agents have authority and control over an individual. While it is clear that this would cover situations where an individual is abducted, detained or ill-treated, the European Court of Human Rights or the Human Rights Committee are not to decide on if States would be held responsible for extraterritorial killings. Ocalan v. Turkey,33 for example, concerned (in part) the applicant’s arrest by members of the Turkish Security Forces inside a Turkish registered aircraft in the international zone of Nairobi Airport. The Grand Chamber stated the basis upon which it accepted that Turkey had exercised

31.Id., ¶ 119.

32.Inter-Am. CHR, Coard v. the United States of America, Case No. 10,951, OEA/ser.L/V/II.106.doc.3rev (1999), ¶¶ 37.

33.See also, Lopez Burgos v. Uruguay, Comm. No. 52/1979, UN Doc. CCPR/C/13/D/52/1979, 1981, which concerned violations of ICCPR by state agents on foreign territory.

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jurisdiction over the applicant as follows:

It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the ‘jurisdiction’ of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey.34

V. THE APPLICATION OF LEX SPECIALIS IN INTERNATIONAL

HUMANITARIAN LAW

The principle of lex specialis in armed conflict situations applies in instances where human rights law and humanitarian law are incompatible and there is a conflict between them. As already established, IHRL protects individuals at all times from abuse of the State, which also includes armed conflict situations. If the application of IHRL conflicts with that of IHL, one of the rules must prevail. In such a situation the principle of lex specialis, (that is where a rule displaces the more general rule) will apply. Which law displaces the other will depend on how close the situation is to the battlefield. Thus where the use of force is at stake and it could be said that military operations are ongoing and that the armed forces have no real control over the situation and were not conducting a law enforcement operation, IHL would be the more appropriate law to apply, rather than IHRL, for the conduct of hostilities. On the other hand where the situation is remote from the battlefield and the state authorities had enough control over a situation to be able to carry out law enforcement operations, IHRL would be the more appropriate law to apply.

The International Court of Justice in its advisory opinions on the Nuclear Weapons35 and the Wall case36 applied this principle. In the Nuclear Weapons case, it was argued that the use of nuclear weapons violated the right to life laid down in Article 6 of the ICCPR.37 The court was of the view that the right under Article 6 is non-

34.Supra note 28, ¶ 118.

35.ICJ, supra note 5, ¶ 26.

36.ICJ, supra note 6, ¶ 101.

37.Article 6(1) provides that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

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derogable and thus applies in armed conflict and that even during hostilities it is prohibited to arbitrarily deprive a person of his life. However, the court defined the term arbitrarily according to IHL by recognizing the primacy of IHL over IHRL in armed conflict.

Whilst the Inter-American Commission has also followed the decision of the International Court of Justice, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights are yet to give their own opinion on the matter. The Human Rights Committee, on the other hand, in avoiding to deal with the issue, found both spheres of law to be complementary and not mutually exclusive.38

VI. CAN HUMAN RIGHTS BODIES APPLY INTERNATIONAL HUMANITARIAN LAW WHERE A VICTIM’S HUMAN RIGHTS HAVE BEEN VIOLATED IN AN ARMED CONFLICT SITUATION?

An individual can bring a matter before an independent body with regard to violation of his civil and political rights.39 However, there is no such procedure available where the individual’s rights have been violated under IHL, even though many serious violations of humanitarian law which occur also constitute serious violations of human rights. The question thus arises as to whether the human right bodies have the mandate to make pronouncements on violations of IHL, taking into consideration the fact that the provisions of a treaty appears to limit their mandate as contained in that treaty.40 Consideration as to how these bodies have dealt with such matters will be discussed.

A. The European Convention on Human Rights

The various bodies of the European Convention on Human Rights have been hesitant to make direct reference to IHL in their decisions. In Cyprus v. Turkey,41 though the

38.General Comment 31, supra note 15, ¶ 11.

39.For example, under Article 1 of the (First) Optional Protocol to the International Covenant on Civil and Political Rights, the Human Rights Committee may receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. Such an individual must have exhausted all domestic remedies before filing such a complaint to the Human Rights Committee. The Human Rights Committee will then consider whether the individual’s human rights have been violated.

40.Article 1 of the Optional Protocol, for example, limits the Human Rights Committee’s jurisdiction to “any of the rights set forth in the Covenant” which would mean that international humanitarian law cannot be directly applied.

41.Supra note 21.

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European Commission on Human Rights allowed the application of the Third Geneva Convention of 1949, it considered whether there had been a violation of Article 5 of the Convention, which deals with the right to liberty and security.

In Loizidou v. Turkey,42 the applicant’s complaint of refusal of access to her property, was made according to Article 1 of the Additional Protocol 1 to the Convention, that is violation of her right to peaceful enjoyment of her property as well a continued violation of the right to respect for her home under Article 8 of the Convention. Although the court recalled that the Convention should be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 of the Law of Treaties and that Article 31 paragraph 3(c) of the Vienna Convention indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties,” it did not apply international humanitarian law. Judgment was given in the complainants favour applying Article 50 of the Convention.

In Bankovic v Belgium,43 the applicants complained that the bombardment of the RTS headquarters by NATO violated some of their rights under the European Convention on Human Rights.44 They also based their claim on States’ duties arising from IHL, as the NATO States were party to the Geneva Conventions and the relevant rules of the Additional Protocol 1, and contended that both these set of rules contained norms of customary nature. The court did not consider the IHL argument but the notion of jurisdiction under Article 1 of the Convention was preferred.

In the latter cases brought before the European Convention on Human Rights bodies, the trend by the bodies has been to make use of IHL principles to interpret specific situations, without actually referring to them by name as seen in Ergi v. Turkey.45 The issue in this case was whether the killing of a person during a terrorist related ambush operation was necessary. The European Court of Human Rights found that the State had failed to take “all feasible precautions in the choice of means and methods of a security operation”46 involving the placement of an ambush in protecting the lives of the civilian population. The Court used the language of IHL to consider the alleged human rights violations by the Turkish security forces in the Kurdish areas.47

42.Supra note 22.

43.Supra note 26.

44.The right to life under Article 2, freedom of expression under Article 10, and right to an effective remedy under Article 13.

45.ECHR, App. No. 23818/93, 28 July 1998.

46.Id., ¶ 79.

47.See also, ECHR, Gulec v. Turkey, App. No. 21593/93, 27 July, 1998 and ECHR, Engel v. The Netherlands, App. No. 5370/72, 23 November, 1976.

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A possible explanation why the Court may have been cautious in applying IHL in their decisions may be because it is an expert in human rights law, rather than IHL. Certain terms used in IHRL and IHL have different meanings, and if the court were not trained to use IHL language, it is possible that a different decision from that which was intended may be reached.

B. The Inter-American Commission on Human Rights

Article 44 of the American Convention of Human Rights provides that:

Any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violations of this Convention by a State Party.

This implies that only breaches of the Convention can be prosecuted. This would mean that neither the Commission nor the Court might examine alleged violations of other international treaties, as they would fall outside the scope of the Convention. To do otherwise would mean that an obligation is being imposed upon a State without its consent, which would be contrary to Article 34 of the Vienna Convention 1969, which provides that obligations can only be created for a State if that State has expressly accepted them.

There have however been quite a number of reports where the Commission has sought to justify its application of IHL to specific situations, which individuals have brought against State Parties.48 Its report in the Tablada (Abella)49 case is an example of this. This case concerned the attack of the military barracks of La Tablada, in January 1989, for almost thirty hours by 42 armed persons who allegedly feared a new coup d’etat would occur. The surviving attackers, applied to the Commission, complaining that Argentina had violated both HRL and IHL when responding to the assault. The Commission directly applied IHL (in particular Article 3 Common to the four Geneva Conventions of 1949) and did not use it merely as an aid to interpret HRL. Its explanation for applying IHL was because:

48.The case of Disabled Peoples’ International et al. v. United States was the first attempt which the Commission made to deal with this problem. See, Inter-Am.EH.R, App. No. 9213, 184, OEA/Ser.L/V/II.71.doc.9 rev 1IV.C(3), April 17, 1987.

49.Inter-Am.CHR, Juan Carlos Abella v. Argentina, Case No. 11,137, Report No. 55/97, OEA Ser.L/V/II.98.Doc.6.Rev (1998), 18 November 1997.

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… The Commission’s ability to resolve claimed violations of this non- derogable right arising out of an armed conflict may not be possible in many cases by reference to Article 4 of the American Convention alone. This is because the American Convention contains no rules that either define or distinguish civilians from combatants and other military targets, much less, specify when a civilian can lawfully be attacked or when civilian casualties are a lawful consequence of military operations.50

In the Las Palmeras case,51 the Inter-American Court did not follow the Commission’s decision that Colombia had violated Common Article 3 of the Geneva Convention. This case concerned the execution of six unarmed civilians by the Colombian police force. It ruled that neither the Commission nor the mandate allowed it to make direct pronouncements on violations of IHL. In paragraph 33 of its ruling, for example, it stated that the American Convention “has only given the court competence to determine whether the acts and norms of the States are compatible with the Convention itself and not with the 1949 Geneva Convention”. The court left open the possibility of using Common Article 3 of the Geneva Convention as an effective tool of interpretation, when dealing with the violations of HRL norms during armed conflict situations.

In the later cases of Bamaca Velasquez52 and Mapiripan Massacre,53 IHL was used as an effective tool of interpretation in applying HRL rules. The case of Bamaca Velasquez concerned a guerrilla fighter who was tortured and murdered by the Guatemalan military during a battle. The Commission requested that the Inter- American Court should decide on the responsibility of Guatemala for the violations of several articles of the American Convention on Human Rights and also certain articles of the Inter-American Convention to Prevent and Punish Torture and Article 3 Common to the Geneva Conventions. In justifying its decision to use IHL as an effective tool of interpretation to HRL rules the Court stated in paragraph 208 that:

Although the Court lacks competence to declare that a State is internationally responsible for the violation of international treaties

50.Id., ¶¶ 158-61.

51.Inter-Am.CHR, Las Palmeras v. Colombia, Case No. 67, Judgment on Preliminary Objections, 4 February, 2000.

52.Inter-Am.CHR, Bamaca Velasqez v. Gutemala, Case No.70, Judgment of 25 November,

2000.

53.Inter-Am. CHR, Mapiripan Massacre v. Columbia, Case No. 134, Judgment of 15 Sept.

2006.

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that do not grant it such competence, it can observe that certain acts of omissions that violate human rights, pursuant to the treaties that they do have competence to apply, also violate other international instruments for the protection of the individual, such as the 1949 Geneva Conventions and in particular, Common Article 3.

The Court then went on to state in paragraph 209:

Indeed there is a similarity between the content of Article 3, Common to the 1949 Geneva Conventions and the provisions of the American Convention and other international instruments regarding non- derogable human rights (such as the right to life and the right not to be submitted to torture or cruel, inhuman or degrading treatment). This court has already indicated in the Las Palmeras case, that the relevant provisions of the Geneva Conventions may be taken into consideration as elements for the interpretation of the American Convention.

VII. CONCLUSION

There is no doubt that over the years the importance of human rights has been recognized in armed conflict situations. Though IHL and IHRL have different origins and are distinct in their application, they share a common goal to protect the lives, health and dignity of persons. However these two bodies of law can no longer be compartmentalized taking into consideration the fact that violations of humanitarian law in most cases also constitute violations of ones human rights at the same time. Since it is unlikely that IHL will be changed in the near future to favour individuals to bring claims for violations in this area of law, it is necessary to overcome the challenges both bodies of law face when making decisions regarding armed conflict situations where such laws are involved, be overcome. One such challenge is the difference between the language of both bodies of law which each would need to comprehend in order to be able to use them.

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MAINSTREAMING HUMAN RIGHTS INTO ALL NGO

WORK

Maria Nassali*

ABSTRACT

This article argues that the governance of NGOs is critical to the strengthening of the human rights movement. It advocates for the rights based approach that advances the moral obligation of NGOs to apply human rights principles to themselves. It urges each NGO to address the power inequalities within its operations, policies and relationships, identify the rights and duty bearers and the nature of the responsibilities. Cognizant that human rights are indivisible and inter-dependent, it challenges the artificial distinction between human rights and development NGOs. Mindful that human rights are universal, it counsels NGOs to learn how ordinary people have appropriated human rights discourse in relation to their culture, knowledge and experiences. Finally, it challenges the human rights mechanisms to provide leadership that will enhance the credibility of the human rights discourse to tame power and offer protection from any abuse of power.

I. INTRODUCTION

Persistent poverty and civil strife have influenced the reconsideration of the development and governance debates in order to re-orient their focus to human rights. Relying on the rights based approach—a mechanism that calls for making all actors accountable for the human rights implications of their actions. This article makes a case for all NGOs to mainstream human rights within their work. Applying human rights principles to NGO day-to-day policies and practices make human rights part and parcel of everyday practices, ultimately catalyzing a human rights culture. The reason for mainstreaming human rights in the work of all NGOs is based on the universality, inter- dependence and indivisibility of human rights. In illustrating the benefits of a rights- based approach in strengthening good governance, this article answers the question: why human rights?

This article begins with a background to the rights-based approach as a tool of good governance and broadly maps the implications of the human rights principles to

* Chief Executive Officer, Uganda Association of Women Lawyers (FIDA-U). Email: <[email protected]>.

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NGO work in part two. The discussion proceeds with the justification as to why all NGOs should apply rights to their governance in part three. Part four examines the extent to which NGOs have respected the fact that human rights are universal, given that the aspirations and values of human rights exist in all societies.1

Furthermore, the legitimacy of NGOs is also derived from the common norms pursued by the NGO and the specific communities that the NGO works with.2 The discussion focuses on how NGOs have related human rights to the knowledge and experiences of the communities that they work with, in order to promote the ownership of the human rights discourse. Using the example of how Development NGOs (DNGOs) have adopted the right-based principles and how Human Rights NGOs (HURINGOs) have respected the struggles of DNGOs as human rights struggles, I also examine the extent to which NGOs appreciate the point that human rights are inter- dependent and indivisible. The following discussion draws on the rights-based approach as a tool that advances the promotion of moral human rights obligations of NGOs to respect and promote rights. It begins by tracing the genesis of the rights-based approach followed by an articulation of the implication of each principle to NGO governance.

II. THE RIGHTS-BASED APPROACH AS AN INSTRUMENT OF GOOD

GOVERNANCE

The rights-based approach is not a new phenomenon, only its popularity is. The post- cold war period rejuvenated the quest for good governance, which necessitated the linking of rights and development, as well as mainstreaming rights in all processes by all actors.

1. See, V. Leary, The Effect of Western Perspectives on International Human Rights, HUMAN

RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES (A.A. An-Naim & P.M. Deng eds, 1990), at 30; S.

GUTTO, HUMAN AND PEOPLES’ RIGHTS FOR THE OPPRESSED: CRITICAL ESSAYS ON THE THEORY AND PRACTICE OF HUMAN RIGHTS FROM A SOCIOLOGY OF LAW PERSPECTIVE 160 (1993); C. Heyns & F. Viljoen, Current Developments: An Overview of International Human Rights Protection in Africa, 15 SAJHR 421 (1999); A.A. An-Na’im & P.M. Deng, Introduction, in An-N a’im & Deng eds, supra, at 9; J.C.N. Paul Participatory Approaches to Human Rights in Sub-saharan Africa, in An-Naim & Deng eds, id., at 214; M. MUTUA, HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE 8 (2002); C.E. Welch,

Human Rights and Francophone West Africa, in An-Na’im & Deng eds, supra, at 206; and C. Heyns & F. Viljoen, The Regional Protection of Human Rights in Africa: An Overview and Evaluation, in HUMAN

RIGHTS, THE RULE OF LAW, AND DEVELOPMENT IN AFRICA 143 (Zeleza & McConnaughay eds, 2004).

2. M. EDWARDS, NGO RIGHTS AND RESPONSIBILITY: A NEW DEAL FOR GLOBAL GOVERNANCE

7 (2000).

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The application of human rights by all actors became popular following the directive of then UN Secretary General, Kofi Annan in 1997 that all UN agencies and programmes make human rights a core value of their activities.3 This process is popularly referred to as the rights-based approach. The effort of mainstreaming rights was accelerated by the appointment of Mary Robinson as the Human Rights Commissioner in 1997, who developed guidelines for the poverty eradication programmes.4 The OHCHR defines the rights-based approach to development as follows.

A rights-based approach to development is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. … [It] integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. … The principles include equality and equity, accountability, empowerment and participation.5

Traditionally, the role of NGOs is to serve as a watchdog of the state’s rights obligations to the individual and to promote good governance. As custodians of good governance, NGOs are not only obliged to monitor and ensure the application of good governance principles by the state and its agencies, but to also observe the principles of accountability, transparency, participation, equity, and non-discrimination in their internal organizations.

The justification for the rights-based approach is traced from 1948, with the recognition by the UDHR, that “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”6 This statement is reiterated in the preamble of the International Covenant on Civil and Political Rights (ICCPR)7 and the International Covenant on

3.P. Alston & M. Robinson, The Challenges of Ensuring Mutuality of Human Rights and Development Endeavours, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT

2 (Alston & Robinson eds, 2005); M. Robinson, What Rights Can Add to Good Development Practice, in

Alston & Robinson eds, id., at 29.

4.Id., at 11-12.

5.See, <http://www.unohchr.ch/development/approaches-01.html>

6.Preamble to the UDHR (1948).

7.G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

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Economic, Social and Cultural Rights (ICESCR).8 The African Charter9 demonstrates the concept of the indivisibility and interdependence of rights by providing for civil and political rights and economic, social and cultural rights in one document. Further, the principles of the rights-based approach have been part of the struggle for social justice, good governance and development.10

The Declaration of the Right to Development of 1986 makes reference to the interdependence and mutually reinforcing relationship between rights and development. It defines development as a “comprehensive economic, social, cultural and political process,” whose objective is the “constant improvement of the well-being of all people on the basis of their active, free and meaningful participation in development and in the fair distribution of the resulting benefits.”11 However, the reality in 46 countries poorer today than in 1990,12 with adverse consequences for peace and development, has compelled the need to re-examine development processes and priorities. Therefore, the rights-based approach places accountability on the recipient country of development aid.13

The Vienna Declaration of 1993 reiterates that the three: rights, democracy and development, are mutually reinforcing and interdependent.14 Similarly, the Copenhagen Declaration of 1995 reaffirms the link between human rights and development by establishing a new consensus that places people at the centre of sustainable development in order to achieve stable, safe and just societies for all. Rights-based approaches can also be traced to women’s efforts of gender mainstreaming, underscoring the indivisibility, inalienability and universality of women’s human rights.15

The article adopts the principles identified by the Office of the High Commissioner for Human Rights, namely: express linkage to rights, accountability,

8.G.A. res. 2200A (XXI), entered into force January 03, 1976.

9.ACHPR, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct.

21, 1986.

10.C. NYAMU-MUSEMBI & A. CORNWALL, WHAT IS THE “RIGHTS BASED APPROACH” ALL ABOUT? PERSPECTIVES FROM INTERNATIONAL DEVELOPMENT AGENCIES 7 (2004); I.G. SHIVJI, THE CONCEPT OF HUMAN RIGHTS IN AFRICA (1989).

11.Declaration of the Right to Development (1986), art. 1.

12.UNDP, HUMAN DEVELOPMENT REPORT (2004); Robinson, supra note 3, at 26; M. Darrow

&A. Tomas, Power, Capture and Conflict: A Call for Human Rights Accountability in Development Cooperation, in 27 HUM. RTS Q. 474 (2005).

13.NYAMU-MUSEMBI & CORNWALL, supra note 10, at 12.

14.Vienna Declaration (1993), paras. 8 and 74.

15.Id. See also, Alston & Robinson eds, supra note 3; Charter of Feminist Principles for African Feminists (2006).

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transparency, participation, equality and empowerment16 and outlines their meaning in respect to NGO governance in the following discussion. In consonance with the earlier critiques of the rights-based approach,17 the article urges the self reflection of the different stakeholders to instil human rights principles in their governance. The following sub-section highlights and clarifies the relevance of human rights principles to the governance and organizing of NGOs.

A. The Rights-based Approach to NGO Governance and Organizing

In discussing the principles of the rights-based approach, it is underscored that they are neither mutually exclusive, but are complementary and overlapping, with the common aim of ensuring the cardinal human right principle of respect of the inherent equality and dignity of the human person.

1.The Principle of Express Linkage to Rights.—The principle of express linkage to rights requires that all NGOs mainstream human rights in their work because human rights are universal, inter-dependent and indivisible. Mainstreaming human rights does not change the focus of what an NGO does, but rather entails paying particular attention to the root causes of inequity, exclusion, discrimination and rights violations. It requires each NGO to undertake a right-duty analysis by identifying the rights addressed in its programme, and by demarcating the relevant rights holders and duty bearers as well as the content of the duty.18 Put differently, each NGO has an obligation to articulate the implication to rights of specific policies and practices as well as the roles and responsibilities of the different stakeholders.19

2.The Principles of Accountability and Transparency.—NGO accountability refers to how an NGO holds itself responsible for its actions, beliefs and the utilization of resources. Accountability safeguards against abuse of power and strengthens ethical

16.<www.unohchr.ch/development/approaches-01.html>

17.P. UVIN, HUMAN RIGHTS AND DEVELOPMENT (2004); P. Alston, Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals, in 27 HUM. RTS Q. (2005); Alston & Robinson eds, supra note 3; NYAMU-MUSEMBI

&CORNWALL, supra note 10; Darrow & Tomas, supra note 12.

18.Hugo Slim, By What Authority? The Legitimacy and Accountability of Non-governmental Organizations (Paper presented at the International Council on Human Rights Policy International Meeting on Global Trends and Human Rights—Before and after September 11, Geneva, January 10-12, 2002), at 14, available at <www.jha.ac/articles/a082.htm>

19.Alston, supra note 17, at 802-11.

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behaviour. NGOs have multiple accountability obligations under the law, to the governmental regulatory NGO Boards, NGO governing boards, to the NGOs’ mission and internal rules and procedures, their membership, communities, public, NGO sector- wide self-regulatory Councils and donors. Being accountable requires being transparent by publicizing the NGOs’ mission as well as the methods and resources of achieving it. This entails among others providing timely, accurate and objective information and allowing space for stakeholder’s feedback.

3.The Principle of Participation and Inclusion.—Participation guarantees that the human person is a central subject of human rights and the principal actor in determining his or her welfare and rights. The right to participation is entrenched within international treaty law.20 Participation is a major means by which people collectively determine their interests, priorities, engage in local dialogue, generate diverse ideas and promote collective commitment for the common good.21 Participation must be “active, free, meaningful” and broad involving diverse stakeholders.22 Participation extends “beyond having a right to participate in a given space to include the right to define and shape that space.”23 Given that the people closest to the problem have ingenious experience in solving them, NGOs are required to address the barriers that keep people from participating and exposes them to processes and skills of asking the right questions and contribute diverse ideas to ensure their rights. Instead of acting for the community, NGOs must act with the community to achieve the desired change.

4.The Principles of Equity, Non-discrimination and Empowerment.—The human rights discourse rests on the value system of equity and non-discrimination24 and the inherent equality and dignity of the human person.25 In order to achieve equality, focus is placed on formal equality by treating people alike and on substantive equality by addressing the systemic and underlying causes of discrimination through affirmative

20.UDHR, art. 21, ICCPR, art. 25, CRC, art. 12, CEDAW, arts 7, 13, 14(2), African Charter on Human and Peoples’ Rights (1981), art. 13.

21.African Charter on Popular Participation (1990), para. 10.

22.UN Declaration on the Right to Development (1986); Vienna Declaration (1993), para. 25; African Charter on Popular Participation (1990), paras 6 & 15.

23.J. Gaventa, Strengthening Participatory Approaches to Local Governance, 16 NATIONAL

CIVIC REV. 29 (2004).

24.UN Charter (1945), art. 1; ICESCR, art. 2(2); ICCPR, art. 2(1); UDHR, art. 1, African Charter (1981), art. 2 & 3.

25.UDHR, art. 1; ICCPR, art. 3; ICESR, art. 2(2) & 3; African Charter (1981), art. 5 & 19.

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action.26 Empowerment means the ability of people to claim and exercise their rights in order to improve their lives.27 The concept of empowerment within NGOs is two dimensional. Firstly, empowerment relates to internal empowerment with each NGO obliged to strengthen itself in terms of skills, capacity, resource mobilization, competitive remuneration and supportive working environment for staff. Secondly, empowerment entails addressing power inequities to enable the weaker party to take action themselves. Furthermore, empowerment addresses how the NGO sector addresses societal inequalities accruing from age, gender, ethnicity, race and sexuality among others. In the era of globalization, empowerment also entails the balancing of power inequalities within NNGOs and SNGOs.

B. Why Human Rights Principles in NGO Governance and Management?

Obviously HURINGOs derive their legitimacy from human rights and are therefore obliged to respect human rights.28 The International Council on Human Rights Policy (ICHRP) is on record as stating that, “as organizations that advocate for democracy and justice, HURINGOs need to show that they do not conduct their own affairs in an undemocratic or unjust way.”29 The ICHRP also contends that any organization that does not acknowledge that human rights are universal would not qualify to be a human rights organization.30 The controversy remains as to whether all NGOs that do not define themselves as HURINGOs should also apply human rights principles to their governance.

This article argues that democracy and governance NGOs have to apply human rights because democracy and rights are mutually reinforcing. Human rights form the cornerstone of democracy. At the African level, all African treaties provide for the promotion of democracy and human rights in the same sentence or article, inferring that democracy and rights are inter-related. Thus, for example, the Constitutive Act of the African Union provides for “respect for democratic principles, human rights and the rule of law and good governance,31 as one of its guiding principles. The African Charter on Democracy, Elections and Governance, 2007 commits itself to the principle

26.CEDAW, General Recommendations on Temporary Special Measures, No. 25, para. 8.

27.<http://www.unhchr.ch/development/approaches-01.htm>; KEYSTONE ACCOUNTABILITY SURVEY 13 (2006).

28.ICHRP, DESERVING TRUST (2003), at 2-3, 17 & 49.

29.Id., at 11.

30.Id., at 38-39.

31.African Union Constitutive Act (2000), art. 4 (m).

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of “respect for human rights and democratic principles.”32

NEPAD commits itself to “promoting and protecting human rights and democracy” by developing clear standards of accountability and participatory governance.33 SADC reaffirms “human rights, democracy and the rule of law,” as core principles and gender mainstreaming as a key objective.34 The fundamental principles of the East African Community (EAC) are “good governance, including adherence to the principle of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality and recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter.”35

In a debate on democracy and rights,36 Aina has argued that “asking the question, “democracy for what?” underlines that “democracy is for the promotion and advancement of individual and collective well-being of different people.”37 Therefore, democracy cannot exist without respect of human rights. Applying human rights principles to all NGOs’ policies, processes and programming is in resonance with the indivisible, inter-dependent and mutually reinforcing conception of rights underscored by the Vienna Declaration of 1993. The political elite have also learnt to appropriate the language of rights, much less derived from principled commitment, than from political compromise and self-preservation.38 Nonetheless, human rights are a social science to solve social problems, including and not restricted to taming the state. Hence, human rights is an ideology of mobilization for any struggle against domination, oppression and exploitation to expose and address any abuse of power and privilege that results in the violation of human rights.39

The development of the rights-based approach in the 1990s integrated human rights in all major global issues and by all actors.40 There are numerous benefits of applying human rights principles to all NGOs—popularly known as rights-based approach. The great merit of human rights is that it draws attention to discrimination

32.African Charter on Democracy, Elections and Governance (2007), art. 3(1).

33.NEPAD (2001), para. 49.

34.SADC Treaty (1992), arts 4 & 5.

35.EAC Treaty (1999), art. 6.

36.T. AINA, ELECTRONIC ROUND TABLE: DEMOCRACY AND HUMAN RIGHTS (2000), available at <www.africaaction.org/rtable/rtb2.pdf>.

37.Id., at 41.

38.C. Bell & J. Keenan, Human Rights, Non-governmental Organizations and the Problems of Transition, 26 HUM. RTS Q. 333 (2004).

39.SHIVJI, supra note 10, at 71; B. Ibhawoh, Restraining Universalism: Africanist Perspectives on Cultural Relativism in the Human Rights Discourse, in Zeleza & McConnaughay eds, supra note 1, at 30.

40.<www.unhchr.ch/development/approaches-01.html>

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and tames the exercise of power by all actors.41 Scholarly opinion suggests that the UDHR together with the two UN Covenants have attained the status of customary international law and thus provide a standard of achievement of all nations and peoples.42 Consequently, the application of rights-based principles to development and governance facilitate the establishment of agreed upon minimum standards of achievement for the protection of rights because both governments and members of society are held accountable for the human rights implications of their work.43

Although mainstreaming human rights in NGO work does not impute a consensus on the most appropriate way of integrating human rights in development and governance, it would expand the human rights movement. The task of serving as a watchdog of both the market and state fundamentalism cannot be achieved by human rights NGOs alone. It requires forging strategic alliances with all NGOs and with the broader component of civil society with the aim of infusing the human rights discourse in the policies and practices of NGOs. Conversely an exclusionary approach could block a natural and important growth of human rights movements.

In real life what is defined as the problem and how it is addressed often depends on who has a voice, status and power.44 Consequently, mainstreaming human rights addresses power inequalities by tackling the phenomenon of elite capture. The concept of elite capture is “a process by which the elite skim development resources intended for the legitimate development … and defines politics in a way that protects their own interests.”45 Human rights therefore provide an effective mechanism to overcome arbitrariness in decision-making and in the development processes.46

Furthermore, given that the human rights community has fewer monetary and personnel resources than the development community, rights-based approach would attract more resources to human rights work.47 Thus, with respect to resources on a global scale, by the mid-1990s, the human rights sector attracted only 1% of the US$

41.Robinson, supra note 3, at 36.

42.J. Donnelly, Human Rights, Globalizing Flows and State Power, in GLOBALIZATION AND

HUMAN RIGHTS 229 (Brysk ed., 2002); W. KOREY, NGOS AND THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS: A CURIOUS GRAPEVINE 3 (2001); A. Reinisch, The Changing International Legal Framework for Dealing with Non-state Actors, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL

REINFORCEMENT (Alston & Robinson ed., 2005), at 39; F. Viljoen, Africa’s Contribution to the Development of International Human Rights and Humanitarian Law, in 1 AHRLJ 19 (2001).

43.Robinson, supra note 3, at 32; Darrow & Tomas, supra note 12, at 487.

44.Id., at 475.

45.Id.

46.Id., at 520.

47.UVIN, supra note 17, at 36.

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50 billion annual revenue of the development sector.48 Similarly, under the NGO sector, the human rights component is comparatively less financially resourced. For example, in 1996, the Organization for Economic Cooperation and Development (OECD) found that 90% of available resources belonged to only 20% of DNGOs.49 In 2005, 50% of the European Commission funding was to DNGOs working in humanitarian and relief services.50 Both OXFAM and CARE generated ten times more revenue than Amnesty International (USA) and more than twenty times that of Human Rights Watch, which are the most resourced HURINGOs.51 Although both South Africa and Nigeria boast of the most dynamic NGO sectors in Africa, in both countries the number of self-professed human rights NGOs is low. HURINGOs constitute about 0.02% of civil society sector in South Africa.52 In a nutshell, mainstreaming human rights would promote a culture of human rights. According to Butler, realization of a human rights culture would mean that:

i) the vulnerable would be better protected from violation, ii) government would promote human rights standards and operate within a human rights framework, iii) public authorities would institutionalize human rights thinking and treat people with fairness and respect thus safeguarding their dignity, iv) wider civil society would popularly accept human rights standards as the principle by which we live and treat each other and by which conflicts are resolved, v) people would recognize and value both their own rights and the rights of others and would genuinely be tolerant of difference.53

The application of human rights principles to NGOs’ work would contribute to a free, equal and equitable world and shift focus from patronage to self-agency. As

48.Id., at 13.

49.I. De Senolissa, A New Age of Social Movements: A Fifth Generation of Non-governmental Development Organizations in the Making? in DEVELOPMENT AND SOCIAL ACTION (Kothari & Eade eds, 1999), at 95.

50.AWID (ASSOCIATION OF WOMEN IN DEVELOPMENT), THE SECOND FUNDHER REPORT:

FINANCIAL SUSTAINABILITY FOR WOMENS MOVEMENTS WORLDWIDE 48 (2007).

51.T.J. Scott, Evaluating Development-Oriented NGOs, in NGOS AND HUMAN RIGHTS: PROMISE AND PERFORMANCE 209 (C.E. Welch ed., 2001).

52.L. Seafield, South Africa: The Interdependence of All Human Rights, in HUMAN RIGHTS

UNDER AFRICAN CONSTITUTIONS: REALISING THE PROMISE FOR OURSELVES (A.A. An-Na’im ed., 2003), at 233-34; C.O. Okafor, LEGITIMISING HUMAN RIGHTS NGOS: LESSONS FROM NIGERIA (2006), at 4 & 6.

53. F. Butler, Building a Human Rights Culture, in HUMAN RIGHTSIN THE COMMUNITY:RIGHTS AS AGENTS FOR CHANGE (Harvey ed., 2005), at 69.

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propounded by Nyamu-Musembi and Cornwall:

[T]he rights-based approach or human rights based approach is a catalyst that can transform the practice of … identifying and meeting needs [of victims] to enabling people to recognize and claim rights that are enshrined in the UDHR. For most, too, this entails 1) work with duty holders-generally the state, but also increasingly non-state actors to strengthen their capacity to respond and be accountable in protecting, respecting and fulfilling human rights … 2) work to build the capacity of citizens to claim their rights, by working alongside them as advocates and by seeking to provide opportunities for people to empower themselves.54

Human rights are strategic in enabling all NGOs and the wider civil society to build a shared perspective and language in order to influence the political and human quality of life in general.55 NGOs have to be exemplars of the human rights practices they demand of the state and market, in order to legitimately monitor the wider civil society, states and the market.56 Put differently, for NGOs to have the moral authority to demand human rights and democratic practices of others, they must practice what they preach. In other words, the building of a human rights culture or a rights-protective society must begin with NGOs.57 Since the “concept of human rights relates to all aspects of human interaction, it is best protected when all people voluntarily observe human rights norms as part of their culture of doing things.”58 The concept of human rights is useful as a discipline to tame power by all actors and at all levels of society. Evans provides an apt definition of discipline as:

a mode of social organization that operates without need for coercion. It is a form of modernist power that imbues the individual with particular ways of thinking, knowing and behaving, thus instilling

54.Nyamu-Musembi & Cornwall, supra note 10, at 45.

55.P. Van Tuijl, Entering the Global Dealing Room: Reflections on the Rights-based Framework for NGOs in International Development, in 21 THIRD WORLD Q. 618 (2000).

56.ICHRP, supra note 28, at 3.

57.J.C. Momba, Civil Society and the Struggle for Human Rights and Democracy in Zambia, in Zeleza & McConnaughay eds, supra note 1, at 230; C.E. Welch, Conclusion, in Welch ed., supra note 51, at 264; S. Dicklitch & D. Lwanga, The Politics of Being Non-political: Human Rights Organizations and the Creation of a Positive Human Rights Culture in Uganda, in 25 HUM. RTS Q. 485 (2003).

58.Heyns & Viljoen (1999), supra note 1, at 422; Heyns & Viljoen (2004), supra note 1, at 130.

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modes of social consciousness that makes social action predictable. Discipline is learned and practiced in the day to day complex of social life, through institutional training received, for example, in the school, the university, the military, the workplace, the church and the prison, where notions of correct and incorrect behaviours and thoughts are clearly delimited. The epithet ‘common sense’ is achieved when a particular mode of thought and conduct is unquestioningly accepted as normal.59

There is a growing appropriation of the human rights language in the mission statements of almost all institutions and organizations. Some organizations have a dual mandate of rights and development. Many traditional DNGOs are concurrently undertaking advocacy to influence policies. Donors and governments have also demanded accountability of NGOs through the legal framework and the funding process. In an effort perhaps of self-preservation, there is a growing trend among NGOs of experimenting and innovating a rights-based approach. This article also documents these efforts as a more accessible format of information sharing. There are many attempts to clarify the human rights principles NGOs should observe. ICHRP identifies the following human rights principles that NGOs should observe— accountability, support to human dignity, universality, non-discrimination, safeguards against abuse of power, belief in the rule of law, commitment to accurate and objective information, effectiveness, and respect for the basic rules of the organization.60

The Charter of Popular Participation urges all NGOs and voluntary organizations to: be fully participatory, democratic and accountable; strengthen institutional structures that bring them together; disseminate successful African and grassroots experiences throughout the continent; establish forum for honest, popular and open dialogue between governments, grassroots organizations and NGOs; give increased support and target their operations within the framework of national economic strategies; give due considerations to initiatives at the grassroots, utilize African expertise, strengthen advocacy nationally and internationally and influence donors in genuine partnership.61

As early as 1991-1995, the Commonwealth Foundation undertook extensive research and consultations that resulted in the “NGO guidelines for good policy and

59. T. Evans, International Human Rights Law as Power/knowledge, in 27 HUM. RTS Q. 1055

(2005).

60.ICHRP, supra note 28, at 9-10.

61.African Charter on Popular Participation (1990), part 111(d).

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practice.”62 Among others, the guidelines outline the values of NGOs as follows: advance and improve the human conditions; respect for the rights, culture and dignity of men and women; devolving the maximum resources to the task at hand, remain true to its mission and objectives; involve beneficiaries as partners, exercise willingness to collaborate and network and maintain high ethical standards at both organizational and personal level.63

Recently the International NGOs (INGOs) adopted an International Non- Governmental Accountability Charter.64 However, only INGOs can become formal signatories to the Charter.65 The Charter is a joint effort of INGOs working globally on human rights, sustainable development, humanitarian responses and other public goods. The purpose of the Charter is to: identify and define shared principles, policies and practices; enhance transparency and accountability both internally and externally; encourage communication with stakeholders and lastly improve INGO performance and effectiveness as organizations.66

The Charter reiterates that transparency and accountability are good for government, business and non-profit organizations and seeks to ensure that the high standards that INGOs demand of others are respected in INGO’s own organizations.67 It articulates a number of principles such as political and financial independence; responsible advocacy that advances shared and defined public interests; effective programming working in genuine partnerships with local communities, NGOs and other stakeholders; non-discrimination that encourages diversity, impartiality and gender equity and balance; transparency, openness, honesty and active communication; compliance with relevant governance, financial accounting and reporting requirements; accuracy of information; good governance by adhering to clear missions, organization structure and decision-making, written values, policies and procedures and ethical fund- raising among others.68

Similarly, humanitarian NGOs have a Code of Conduct, namely, the Humanitarian Charter and Minimum Standards in Disaster Response.69 African women

62.COMMONWEALTH FOUNDATION, NON-GOVERNMENTAL ORGANIZATIONS: GUIDELINES FOR GOOD POLICY AND PRACTICE (1995), at V.

63.Id., Guideline 5.

64.International NGO Accountability Charter (2005).

65.Id.

66.Id., at 3.

67.Id.

68.Id., at 4-6.

69.ICHRP, supra note 28, at 4.

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have developed the Charter of Feminist Principles for African Feminists.70 The Feminist Charter is a tool to monitor institutional development and establish peer review mechanisms.71 The Feminist Charter outlines individual ethics: the indivisibility, inalienability and universality of women’s human rights; networking; solidarity and mutual respect; care of other African feminists; non-violence; freedom of choice and autonomy; critical engagement of culture, tradition and domesticity; respectful personal relationships and documentation of women stories.72 It also prescribed institutional ethics: openness, transparency, equality and accountability; professionalism; egalitarian governance, fair and equal remunerations; creation of spaces to empower and uplift women; responsible leadership and management of organization; taking into account the need for self-fulfilment and professional development of others; leadership of women organizations by women; financial prudence and ethics; self assessment and working in response to real needs expressed by women.

Lastly, the Feminist Charter commits feminists to subscribe to the feminist leadership which is characterized by disciplined work ethics, strengthened multi- generational network; ensuring that the feminists’ movement is recognized as a legitimate constituency; building and expanding knowledge; mentoring and providing opportunities for young feminist in a “non-matronizing” manner and openness in giving and receiving peer reviews.73 It is evident that the policy prescriptions of the above charters signify the necessity of human rights and justify the NGO’s application of human rights principles.

C. The Principle of Express Linkage to Rights and the Universality of Human Rights

The following discussion analyses the extent to which NGOs have respected the universality of human rights. The discussion begins with an examination of how Northern NGOs (NNGOs) respect African NGOs in interpretation and prioritization of the human rights discourse. It is followed by an analysis of the appreciation by African NGOs of ordinary people’s conceptualization of human rights.

1. Conceptualization of Rights Amongst NNGOs and SNGOs.—Human rights are universal and therefore must reflect the changing values, perceptions and different

70.<www.africafeministsforum.org>

71.African Feminist Charter (2006), at 3.

72.Id., at 10-11.

73.Id., at 15-16.

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contextual realities of the world. Despite the recognition of the universality of human rights, human rights are still predominantly understood and expressed in western ideas and language.74 The genesis of human rights is almost exclusively confined to western history which perpetuates the misconception of human rights as a western concept. For example, Rhoda Howard dismisses the presence of human rights in traditional Africa, arguing that it was merely a concept of human dignity.75 On the other hand, Leary argues that while the “atrocities of the Nazi regime in Germany” were the immediate compulsion for the development of an international system of human rights, the contribution of the West in developing human rights “was great, but by no means unique.”76

Secondly, there is a difference in the prioritization of rights. NNGOs prioritized CPRs while SNGO also sought to address ESCRs. The prioritization of CPRs was influenced by the fact that human rights initiatives were predominantly spearheaded by lawyers, journalists and other professionals whose interests and activities are substantially affected by the infringement of CPRs.77 Further, during the Cold War, ESCRs were considered communist in inspiration and content and therefore lacked a comprehensive institutional framework for enforcement.78

Third, is the difference in strategies to advance human rights. Many African NGOs grew out of the overt support from the NNGOs.79 In practice, INGOs occupy such a “high moral plane in the public policy discourse” that questioning them is dismissed as either “naivety or being apologists for repressive governments and cultures.”80 Consequently, most SNGOs initially mirrored the strategies of NNGOs, such as standard setting through legally binding treaties, the documentation of abuses, research, public advocacy and providing assistance to the victims of human rights

74.MUTUA, supra note 1, at 2-4.

75.R. Howard, Group Versus Individual Identity in the African Debate on Human Rights, in

An-Naim & Deng eds, supra note 1, at 166.

76.Leary, supra note 1, at 30; MUTUA, supra note 1, at 16.

77.INTERNATIONAL HUMAN RIGHTS INTERNSHIP PROGRAM (IHRIP) AND THE SWEDISH NGOS

FOUNDATION FOR HUMAN RIGHTS, THE STATUS OF HUMAN RIGHTS ORGANIZATIONS IN SUB-SAHARAN

AFRICA 6 (1994).

78.J. Oloka-Onyango, NGOs struggles for ESCRs in UTAKE: A Ugandan Perspective, in

HUMAN RIGHTS NGOS IN EAST AFRICA: POLITICAL AND NORMATIVE TENSIONS (M. Mutua ed., 2009), at 75-76; MUTUA, supra note 1, at 52-53.

79.S.N. NDEGWA, THE TWO FACES OF THE CIVIL SOCIETY: NGOS AND POLITICS IN AFRICA 32

(1996).

80.MUTUA, supra note 1, at 37.

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abuses.81 While learning from the experience of others is essentially a positive thing in order to avoid repeating the same mistakes, in the 1990s, many SNGOs in addition to employing the strategies of NNGOs began investigating the root causes of the violation of rights.82 Hence, the differences in strategies with NNGOs preferring the apolitical liberal legalism approach to rights and SNGOs preferring a more political advocacy approach that addresses the roots causes of violations, such as bad governance and corruption.

Following the Vienna Conference, the Harvard Retreat highlighted the satisfaction, frustrations and some differences within the human rights movement, shaped by contextual experiences.83 The Harvard Retreat noted that the “… NGO movement has no single inspiration or aspiration, neither a spiritual nor secular authority to define one belief for all within it, no pope and no central committee.”84 Nonetheless, the Harvard Retreat emphasised that the differences between the NNGOs and SNGOs were “superficial relating to priorities and style,” but did not dispute the point that human rights are universal or the existence of an international human rights movement.85 The differences relate to the priorities, strategies and geographical focus of human rights work.

In criticizing NNGOs at the Harvard Retreat, participants from the SNGOs appreciated the fact that advocacy based on individual cases adds the attraction of realism to activism.86 Thus, SNGOs did not advocate for the abandonment of the traditional strategies of remedying individual human rights violations, but sought an expanded role that would also address the root causes of human rights violations.87 Likewise, at the African retreat of Amnesty International (AI) which was aimed at enhancing its “dynamic and effective presence, visibility and strategic direction” in

81.Id., at 37-38; M. Mutua, Introduction: Human Rights NGOs in East Africa: Defining the Challenges, in HUMAN RIGHTS NGOS IN EAST AFRICA:POLITICAL AND NORMATIVE TENSIONS (M. Mutua ed., 2009), at 19; Oloka-Onyango, supra note 78, at 83; W. Mutunga, So What Really Is Non-partisanship? in EYES ON THE PRIZE (2003), at 37; C.E. Welch, Introduction, in NGOs AND HUMAN RIGHTS: PROMISE AND PERFORMANCE (Welch ed., 2001), at 3.

82.M.E. Keck & K. Sikkink, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORK IN

INTERNATIONAL POLITIC (1998), at 184 & 88; MUTUA, supra note 1, at 37; T.W. Dichter, Appeasing the Gods of Sustainability: The Future of International NGOs in Microfinance, in NGOS, STATE AND

DONORS: TOO CLOSE FOR COMFORT (D. Hulmes & M. Edwards eds, 1997), at 3.

83.H.J. STEINER, DIVERSE PARTNERS: NGOS IN THE HUMAN RIGHTS MOVEMENT (Report of a Retreat of Human Rights Activists, 1999), at 17 & 81.

84.Id., at 8.

85.Id., at 81 & 17.

86.Id., at 23.

87.Id., at 22.

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Africa,88 African participants (while appreciative of AI’s hard hitting advocacy and critical role during dictatorial regimes) found AI’s ostensibly apolitical stance and the rule that barred its members from working in their own countries frustrating.89 The African participants contended that while NNGOs can afford to stay apolitical and detached from politics because they work in foreign lands and therefore have to respect the core principle of sovereignty in international law, African NGOs cannot afford to ignore the political trajectories within their midst.

Fourthly, because of the power imbalance in favour of NNGOs, NNGOs have set the international agenda and concentrated their activism in the South. Ironically, in spite of the human rights movement having been precipitated by the human rights violations in Europe following the 1st World War, it is currently a civilizing crusade” targeted at the South.90 African NGOs accuse NNGOs of prejudice by predominantly portraying Africans as “hopeless and helpless” victims while ignoring the human rights violations in their own countries as well as the negative impact of globalization on the global ecology and economy.91 In contrast, reports on the North are both episodic and insufficiently publicized.92

Ironically, African NGOs have equally ignored the experiences and knowledge of how ordinary people have applied human rights to their experiences, a point that is taken up in the following section of the study.

2. African NGOs and Cultural Interpretation.—African NGOs to a large extent have wrongly packaged human rights as a sophisticated discourse to be transmitted to “ignorant masses.”93 And yet, the legitimacy of NGOs is buttressed by the “…

88.AI Africa Consultative Forum, Entebbe, Uganda, 7-9 July 2005.

89.Id., at 1-5.

90.MUTUA, supra note 1, at 19.

91.F. Manji, Depoliticization of Poverty, in DEVELOPMENT AND RIGHTS (D. Eade ed., 2004), at 28; Mutunga, supra note 81, at 37; Dichter, supra note 82, at 129; J. Oloka-Onyango, Modern-day Missionaries or Misguided Miscreants? NGOs, the Women's Movement and the Promotion of Human Rights in Africa, in THE HUMAN RIGHTS OF WOMEN: INTERNATIONAL INSTRUMENTS AND AFRICAN

EXPERIENCES (Wolfgang, Kisaakye & Oberleitner eds, 2002), at 292; STEINER, supra note 83, at 27–28; D.A. Bell & J.H. Carens, Ethical Dilemmas of International Human Rights and Humanitarian NGOs: Reflection on a Dialogue Between Practitioners and Theorists, 26 HUM. RTS Q. (2004), at 326–327.

92.Id., at 314-315; Mutua, supra note 81, at 19.

93.STEINER, supra note 83, at 74; A.A. An-Na’im, The Legal Protection of Human Rights in Africa: How to Do More with Less, in HUMAN RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES (A. Sarat

&T.R. Kearns eds, 2001), at 105; A.A. An-Nai’m, Expanding Legal Protection of Human Rights in Africa Contexts, in HUMAN RIGHTS UNDER AFRICAN CONSTITUTIONS: REALIZING THE PROMISE FOR OURSELVES

(A.A. An-Na’im ed., 2003), at 3.

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consistent stand in the interest of the large masses and for human rights values and causes.”94 For human rights to be entrenched as part and parcel of everyday struggle, it must infiltrate the ideological, financial and moral ethics of ordinary communities.95 By implication, NGOs have an obligation to learn how the local people have adapted their traditional culture to human rights principles. Erasing negative cultural norms requires the active participation of the communities in effecting change. As Odinkalu reminds us:

[P]eople are acutely aware of the injustices inflicted upon them. … [T]he real life struggles for social justice are waged despite human rights groups-not by or because of them-by people who feel that their realities and aspirations are not adequately captured by human rights organizations or their language. … People will struggle for their right whether or not the language of human rights is accessible to them. … But they will not build the struggle around the notion of human rights unless the language … speaks directly to their aspirations and survival.96

This article is neither intended to blindly romanticize African-ness nor to belabour the somewhat stale cultural relativism and universalism debate. Instead, the article advocates for the activism of NGOs to deconstruct the concept of traditional culture in order to discard the negative social practices while preserving the positive ones that contribute to the universality of human rights. Presently, respect of people’s knowledge based on their experiences is an exception rather than the norm.

One of the unique contributions of the African Charter is that it promotes “positive cultural values … in a spirit of tolerance, dialogue, consultations to contribute to the promotion of the moral well-being of society.”97 Likewise, the Protocol on Women unequivocally calls for the preservation of African cultures that are positive and based on principles of equality, peace, freedom, dignity, justice, solidarity and

94.I.G. Shivji, Reflections on NGOs in Tanzania: What We Are, What We Are Not, and What We Ought to Be, 14 DEVELOPMENT IN PRACTICE 3 (2004); EDWARDS, supra note 2, at 1.

95.NDEGWA, supra note 79, at 16; M. Mutua, The Complexity of Universalism in Human Rights, in HUMAN RIGHTS WITH MODESTY: THE PROBLEM OF UNIVERSALISM (A. Sajo ed., 2004), at 196;

C.E. WELCH, PROTECTING HUMAN RIGHTS IN AFRICA: ROLES AND STRATEGIES OF NON-GOVERNMENTAL ORGANIZATIONS 297 (1995).

96.C.A. Odinkalu, Why More Africans Don’t Use the Human Rights Language, 2 HUM. RTS

DIALOGUE (1999).

97.African Charter (1981), art. 29(7).

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democracy.98 UNESCO’s Declaration of the Principles of International Cultural Cooperation acknowledges that each culture has dignity and values which must be respected and preserved and all cultures form part of the common heritage belonging to all mankind.99 Reference to culture is most routinely used to mean artistic expressions or its cultural products, such as literature, music, dance, arts, sculpture, theatre, film and sports.100 However culture is a “way of life, encapsulating a people’s identity and wisdom.”101 As substantiated by the Blair Commission:

[C]ulture is also about shared patterns of identity, symbolic meaning, aspirations and about relationships between individuals and groups within a society. Culture is also about the relationship between ideas and perspectives about self-respect and a sense of security, about how individuals are socialized and values are formed and transmitted. It is also deeply intertwined with structures of power and wealth. What it is not—contrary to the views of some—is an expression of unchanging tradition. … Culture is both dynamic and reactive, it both influences economic and political conditions and is influenced by them.102

Similarly, the Human Rights Council defines culture as:

a set of shared spiritual, material, intellectual and emotion features of human experience that are created and constructed within social praxis. As such culture is intimately connected with the diverse ways in which social groups produce their daily existence economically, socially, and politically. It therefore embraces both commonly held meanings that allow for the continuation of everyday practices as well as competing meanings that galvanise change over time.103

98.Preamble to the Protocol on Women (2003).

99.UNESCO Declaration of Principles of Cultural Cooperation (1966), art. 1(1) & I (3).

100.OUR COMMON INTEREST: REPORT OF THE COMMISSION FOR AFRICA (2005) (hereinafter Blair Commission), available at <http://www.commissionforafrica.org/english/report/thereport/english/11- 03-05_cr_report.pdf>

101.MUTUA, supra note 1, at 19.

102.Blair Commission, supra note 100, at 114, ¶ 3.

103.YAKIN ERTÜRK, INTERSECTIONS BETWEEN CULTURE AND VIOLENCE AGAINST WOMEN

(Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Implementation of General Assembly Resolution 60/251 of 15 March 2006, A/HRC/4/34 G. 2007), at 8.

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However, due to colonialism African culture is almost exclusively perceived as a source of human rights violations, as regressive and inimical to development.104 The CEDAW Committee depicts culture as a negative impediment to the enjoyment of women’s rights with no possibility of facilitating women’s empowerment.105 Similarly, in considering state reports, the African Commission tends to attribute the denial of women’s human rights to the restrictive construction of culture.106 The hostility against culture is influenced by the fact that the African Charter tends to represent culture as straightforward, monolithic and homogenized.107 Likewise, the African Cultural Charter does not elucidate what African culture actually is but speaks of it as a homogenous entity.108

Using an example of the issue of sexuality, Tamale illustrates the potential of the social legitimacy of African culture as an empowering resource to challenge male domination.109 Placing culture parallel to rights leaves majority of women without redress because it requires them to “strip themselves of culture before enjoying rights.”110 Consequently, women are left with the limited choice of either complying with the negative culture or of joining the dominant human rights discourse that trivializes their cultural experiences.111 Thus the UN Special Rapporteur on Violence Against Women argues that reducing violence against women to a cultural problem isolates it from the political/economic environment, yet “no custom, tradition or religion can be invoked to justify violence against women.”112

The misconception that culture and rights are antagonistic and distinct from each other distances human rights from the realities of African people and therefore frustrates the entrenching of rights as a lived concept. Every culture has notions of

104.Blair Commission, supra note 100, at 116, ¶ 14; OKAFOR, supra note 52, at 215; R. Murray, A Feminist Perspective on Reform of the African Human Rights System, in 2 AFR. HUM. RTS L. J. 224 (2001); S. Tamale, The Right to Culture and the Culture of Rights: a Critical Perspective on Women’s Sexual Rights in Africa, in SEX MATTERS (2007), at 149-51.

105.C. Nyamu, How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries? 41HARV.INTL L.J.381(2000); F.BANDA, WOMEN, LAW AND HUMAN RIGHTS: AN AFRICAN PERSPECTIVE (2005), at 249-50; 15 YEARS OF THE

UNITED NATIONS SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN,ITS CAUSES AND CONSEQUENCES

(2009), at 39.

106.Nyamu, id.; Banda, id.

107.Banda, id., at 251.

108.Cultural Charter for Africa (1976).

109.Tamale, supra note 104, at 158-64.

110.Id., at 157.

111.ERTÜRK, supra note 103, at 17.

112.Id., at 3 & 19.

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human rights.113 The assumption that local practices do not embrace human rights ignores the fluid and transformative potential of local cultural norms as well as the impact of human agency in bringing about change.114 It is therefore incumbent on NGOs as proponents of human rights to demonstrate the relevance of international standards to the local context.115

Granted that culture is a double-edged sword, capable of both enhancing and detracting from human rights, the problem emanates from the blanket rejection or glorification of culture. Rather than using culture as a building block for popularising the human rights movement, many NGOs shunned the reference to culture within the African Charter as amounting to the condoning of human rights abuses.116 Gutto recalls the resistance of most NGOs during the public session of the African Commission to any mention of “African culture, African traditions, African values and African practices.”117 It is noteworthy that eventually a consensus was reached with NGOs recommending that the reference to moral and traditional values in the African Charter be confined to those that enhance the enjoyment of human rights.118 Even at the 43rd session of the Commission in May 2008, the NGO Forum attributed the violation of women’s and children rights to culture.119

Similarly, in Tanzania, NGOs are obliged to respect the cultures and traditions of the communities they work with.120 However, the NGO Task Force in Tanzania complained that obliging them to respect the cultures of the communities within which they operated was retrogressive, imputing culture as exclusively negative.121 Okafor attests to no knowledge of any NGO that has ever bothered to report or conduct a single seminar on the aspects of the Nigerian culture that would support the human rights

113.Leary, supra note 1, at 30; GUTTO, supra note 1, at 160; Heyns & Viljoen, supra note 1, at 421; An-Na’im & Deng, supra note 1, at 9; Paul, supra note 1, at 214; MUTUA, supra note 1, at 8; Welch, supra note 1, at 206; BANDA, supra note 105, at 305; and U. BAXI, THE FUTURE OF HUMAN RIGHT 12 (2002).

114.C. Nyamu-Musembi, Are Local Norms and Practices Fences or Pathways? The Example of Women’s Property Rights, in CULTURALTRANSFORMATIONANDHUMANRIGHTSINAFRICAN (An-Na’im ed., 2002), at 127; Tamale, supra note 104, at 149-52; ERTÜRK, supra note 103, at 9 & 21.

115.An-Nai’m, supra note 93, at 9.

116.GUTTO, supra note 1, at 156.

117.Id.

118.AFRICA COMMISSION, CONCLUSIONS AND RECOMMENDATIONS OF A WORKSHOP ON NGO PARTICIPATION IN THE WORK OF THE AFRICAN COMMISSION, GAMBIA (1991).

119.NGO Forum Indaba, SWAZI OBSERVER, 6 May 2008, at 14.

120.Tanzania NGO Act 2002, s.31 (b).

121.Id.

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discourse.122 Hence, the Botswana Council of NGOs (BOCONGO) is unique for having taken a decision to draw from positive Tswana culture.123

Cognisant that human rights is the “most globalized political value of our time,”124 the issue is not to earmark the boundaries of each culture but to understand culture as a dynamic concept that has blended with human rights, religion, modernity, and capitalism to mention but a few. Culture is historically constructed through human action, incorporated into the power structures, and reinterpreted through local understanding and interests.125

In Chiku Lidah v. Adam Omari,126 it was reiterated that Customary Law is not immutable but is a “living law capable of adaptation and development.”127 Therefore, NGOs should build on the positive cultural values that resonate with human rights principles instead of dismissing culture as solely an impediment to the realization of rights.128 The Human Rights Council calls for a “cultural negotiation” that emphasizes positive elements to advance human rights and demystifies the oppressed elements and the hierarchies within.129 Yankin Erturk rightly observes that the “threat to women’s human rights comes from the monopoly over the interpretation and representation of culture by the powerful few, rather than culture per se.”130 The adoption of a cross- cultural perspective that promotes the interplay between cultural norms and universal human rights is crucial in stimulating the mass support of human rights.131 Ngugi-wa- Thiongo argues that culture, “as an embodiment of values in society is a positive social mechanism.”132 He therefore urges the elite to “remember not as prisoners of tradition, but to learn the pluses and minuses of their past experience in order to act in the present and project the future.”133

122.OKAFOR, supra note 52, at 110.

123.BOCONGO CIVIL SOCIETY EDUCATION STRATEGY (2007), at 16.

124.A. Sarat & T.R. Kearns, The Unsettled Status of Human Rights: An Introduction, in Sarat

&Kearns eds, supra note 93, at 4.

125.Id., at 14-15.

126.PC Civil Appeal No. 34 of 1991.

127.Id.

128.Banda, supra note 105, at 256; Nyamu-Musembi, supra note 114, at 126; ERTÜRK, supra note 103, at 19-20.

129.Id.

130.ERTÜRK, supra note 103, at 29.

131.An-Na’im & Deng, supra note 1, at 9 & 12; Paul, supra note 1, at 214; MUTUA, supra note 1, at 8; Welch, supra note 1, at 206.

132.Ngugi wa Thiongo, The role of intellectuals in African University, The Ford Foundation Distinguished lectures, (2004).

133.Id.

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The concept of ubuntu among the Bantu people of sub-Saharan Africa, loosely defined as humanness, respect for the human person and community responsibility towards each other134 provides a basis for linking rights to culture. While its commonality is agreed over among most African languages, critics of ubuntu trivialize it as inherently patriarchal and of limited relevance to the contemporary youth.135 Proponents of ubuntu acclaim it as a “philosophy of … personhood, humaneness and morality.”136 To Fredrick Jjuuko, ubuntu is a more expansive concept than human rights because it obliges mutual responsibility while the rights are demand driven, adversarial and confrontational and their enjoyment depends on an individual’s willingness and capability to claim rights.137 The common rules of African cultures, such as responsibilities towards others, participation, compromise, tolerance of diversity are similar to the human rights principles.138 Likewise, the social values inherent in ubuntu such as solidarity, conformity, compassion, respect, human dignity and collective unity, “… provide an indigenous impetus that aligns age-old African social innovations and historical cultural experiences to present day legal notions and techniques in order to create a legitimate system of law.”139

The Centre for Human Rights at Pretoria has demonstrated the utility of engaging cultural institutions. Since 2003, recognizing that a majority of Southern Africans are subject to the chieftaincy rule particularly over land and inheritance issues, as part of its Community Service Programme, the Centre has organised over twenty workshops targeting SADC cultural chiefs.140 The rationale of the programme is to challenge the chiefs to analyze their cultural civilization and act as advocates for progressive change.141 For example, in its original conceptualization, the estate of the deceased person was not taken as individual property of the heir for private appropriation but the heir served as the trustee of the estate for the collective good of all beneficiaries, akin to the concept of a legal administrator. The dispossession of

134. SOUTH AFRICAN HUMAN RIGHTS COMMISSION, REPORT ON THE SEMINAR ON AFFIRMING A CULTURE OF VALUES IN THE SOUTH AFRICAN HUMAN RIGHTS FRAMEWORK (August 2006), available online at <www.sahrc.org.za/sahrc-cms>.

135.D. Cornell & K. van Marle, Exploring Ubuntu: Tentative Reflections, in 5 AFR. HUM. RTS

L. J. 196 (2005).

136.Y. Mokgoro, Ubuntu and the Law in South Africa, in 4 BUFF. HUM. RTS L. REV. 15 (1998).

137.Interview with Assoc. Prof. Fred Jjuuko , Chairperson, The Free Movement, Uganda, 29 August 2007, at Makerere University.

138.Welch, supra note 1, at 206; An-Na’im & Deng, supra note 1, at 12.

139.Mokgoro, supra note 136, at 17-18 & 21.

140.Interview with Professor Hansungule, Centre for Human Rights, Pretoria, 14 May 2007,

at Pretoria.

141.Id.

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women’s property rights is a result of the introduction of individual property rights. Fareda Banda also uses women’s rights as an analogy to illustrate that human

rights and culture are not opposed to each other but can be complementary.142 Moreover, the reference to culture by states is intended to preserve the unequal cultural interpretations bestowed upon privileged men.143 Likewise, Ifi Amadiume argues that it is colonial rule and the introduction of Christianity which destroyed the traditional power of African women derived from “motherhood,”144 preached “self-sacrifice” and “condemned women’s headstrongness as unfeminine.”145

At the Amnesty International African Consultative Workshop of 2005, participants challenged women to use the positive examples of women’s human agency in pre-colonial and colonial struggles such as Bibi Titi in Tanzania and Femiliao of Nigeria as well as the existence of powerful priestess and goddesses to reinforce the cultural legitimacy of women’s struggles. At the Jinja Retreat of the Uganda Feminist Forum, feminists observed that they were deliberately cast as “culturally alien” in order to alienate them from the social base of their communities.146

However, in the case of Magaya v. Magaya,147 the eldest girl sought to become heir to her father. Fareda Banda observes that the instituting of the case by a “simple, old rural woman” challenges the myth that it is only elite “women who without cultural moorings seek different interpretations of African cultural values.”148 It is redeeming that the Protocol on Women provides that women be consulted about the content of the cultural norms that are to operate within their societies.149 Significantly, the Protocol on Women validates “Africa women’s agency in challenging culture as a concept of power, authority and reshaping of society.”150

Similarly the African Feminist Charter obliges the “critical engagement with discourses of religion, culture, tradition and domesticity with focus on the centrality of women’s rights.”151 Likewise, the Commonwealth Foundation NGO guidelines for

142.Banda, supra note 105, at 262.

143.Id., at 252.

144.I. Amadiume, Gender, Political Systems and Social Movements: A West African Experience in, AFRICAN STUDIES IN SOCIAL MOVEMENTS AND DEMOCRACY (M. Mamdani & Wamba-dia-Wamba eds, 1995), at 38 & 54.

145.Id., at 56; Tamale, supra note 104, at 159.

146.Uganda Feminist Forum, 16 January 2008.

147.1999 (1) TLR 100 [1999] 3lrc 35.

148.Banda, supra note 105, at 37.

149.Preamble to the Protocol on Women (2003), art. 17.

150.Tamale, supra note 104, at 159.

151.African Feminist Charter, available at <www.awdf.org/pages/?p.d=1&s.d=62>, at 11.

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good policy and practice, recommends the “respect for the rights, culture and dignity of men and women.”152

The Ganda proverb, Yiga Ngokola (learn as you work) is based on the African philosophy of community work and learning through community activity.153 Building on the African proverb Amagezi sigomu directly translated to mean “knowledge does not belong to a single person;” activities are initiated by singing, dancing or story- telling to elicit vibrant discussions.154 A case study of the Organization of Rural Associations for Progress (ORAP) in Zimbabwe reveals that for meaningful development to take place, NGO strategies must be rooted in the people’s cultural knowledge.155 ORAP undertook an extensive cultural analysis that identified shared cultural values within the Ndebele language to shape its philosophy: ziqoqe—self mobilization; zenzele—do it yourself/fend for yourself; Ziqhatshe—create self employment; zimele-self reliance (based on interdependence) be independent; qugelela—create savings.”156

Bottom-up approaches anchored in traditional culture build on people’s experiences as a basis for reform.157 The application of human rights education to specific situations enables the retention of what is best in African culture while upholding the universalism of human rights. Respect for the knowledge of ordinary people encourages the framing of everyday experiences in human rights language, ultimately promoting ownership of human rights as part of social debate and practices.158 The issue of how DNGOs and HURINGOs have promoted the principle of the indivisibility of human rights is the focus of the succeeding debate.

III. THE PRINCIPLE OF INDIVISIBILITY OF RIGHTS

In this discussion, we review the traditional relationship that exists between DNGOs and HURINGOs, and critically examine how DNGOs have linked human rights to their

152.COMMONWEALTH FOUNDATION NON-GOVERNMENTAL ORGANIZATIONS: GUIDELINES FOR

GOOD POLICY AND PRACTICE (1995), Guideline 5.

153.D.W. Nabudere, Social transformation in Uganda: A Study of Grassroots NGOs, in Mutua ed., supra note 81, at 246.

154.Id.

155.A.E. Sibanda, Voicing a Peasant Alternative: The Organization of Rural Associations for Progress (ORAP) in Zimbabwe, in PEASANT ORGANIZATIONS AND DEMOCRATIZATION IN AFRICA

(Romdhane and Moyo eds, 2002), at 323.

156.Id., at 324.

157.Tamale, supra note 104, at 164.

158.FIDA-U Organizational Development (2007), at 20.

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work. The discussion also interrogates how HURINGOs appreciate the struggles of DNGOs as human rights struggles.

A. The Traditional Relationship between DNGOs and HURINGOs

The Vienna Declaration recognizes the indivisibility of human rights.159 The indivisibility of human rights provides a conceptual basis to mainstream rights in all the practices and policies of NGOs. Prior to the 1990s, “… development enterprise lived in splendid isolation from human rights, both at the level of discourse and practice.”160 As observed by UNDP:

Until the last decade, human development and human rights followed different paths in both concept and action—one largely dominated by economists, social scientists and policy makers, the other by political activists, lawyers and philosophers. They promoted divergent strategies of analysis and action-economic and social progress on the one hand, political pressure, law reform and ethical questioning on the other.161

Development was considered a combination of goodwill and technical knowledge, devoted to economic growth and addressing poverty, while human rights was concerned with the exposure of abuse of power.162 HURINGOs preferred to stick to CPRs leaving the struggles for ESCRs and social change to the DNGOs.163 Likewise, development was conceptualized as a technical and not a political process, rendering it blind to the dynamics of power and exclusion.164 The principle of express linkage to rights requires each NGO to undertake a right-duty analysis which indentifies the rights addressed in an NGO programme, the relevant rights holders and duty bearers as well as the content of the duty.165 Mainstreaming human rights is strategic because development and

159.Vienna Declaration (1993), ¶ 5.

160.UVIN, supra note 17, at 1 & 47.

161.UNDP, supra note 12, at 2; Robinson, supra note 3, at 27; Nyamu-Musembi & Cornwall, supra note 10, at 8.

162.J. Wolfensohn, Some Reflection on Human Rights and Development, in HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT (Alston & Robinson eds, 2005), at 21; UVIN, supra note 17, at 47.

163.Id., at 31; Oloka-Onyango, supra note 91, at 33.

164.UVIN, supra note 17, at 3, 31 & 37; Manji, supra note 91, at 26.

165.ICHRP, supra note 28, at 14.

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human rights share the key common values of inclusion, non-discrimination, ownership, accountability, transparency, participation and empowerment and are committed to promoting the dignity and welfare of the human person.166

In spite of the common goal of promoting the dignity, equality and welfare of the human person, neither the DNGOs nor the HURINGOs embraced the indivisibility of human rights with “enthusiasm or conviction.”167 Alston has likened the relationship between the development and human rights community to “… ships passing in the night, each with little if any sustained engagement with one another.”168

The ambivalence of applying human rights by DNGOs is attributed to a number of factors namely divergent goals, the marketing of rights as an essentially legal discourse and the ambiguous conceptual framework. The major challenge in merging the rights discourse and development discourse is the divergent goals with development essentially preoccupied with economic growth while rights focus on the preservation of the dignity of the person and the exposure of abuses of power.169 On the one hand, HURINGOs prefer to apply the rights-based approach as a normative concept that imposes legal and moral obligations on all actors and all processes and operations, arguing that rights are both a means and an end to development.170 On the other hand, DNGOs use rights-based approach as an instrument to achieve more effective programming.171

In practice, the merging of rights and development is susceptible to controversy, which repeatedly provides a smokescreen for hiding inequities and rights violations from scrutiny.172 This is due to the dismal reality of not automatically applying human rights as the core of good governance.173 Moreover, economic globalization tends to shift the balance of power towards markets, preoccupied with economic gain, to the detriment of a fair distribution of the benefits of economic growth in order to assure minimum rights for all.174 There is also a tendency for DNGOs to

166.Alston, supra note 17, at 825; Alston & Robinson, supra note 3, at 4.

167.Alston, id., at 755; Darrow & Tomas, supra note 12, at 472.

168.Alston, id., at 799.

169.UVIN, supra note 17, at 2.

170.Darrow & Thomas, supra note 12, at 492.

171.Id., at 492-93.

172.J. Donnelly, Human Rights, Democracy and Development, in 21 HUM. RTS Q. (1999), at 162; UVIN, supra note 17, at 118.

173.M. Kjaer & K. Kinnerup, How Does Good Governance Relate to Human Rights, in HUMAN

RIGHTS AND GOOD GOVERNANCE: BUILDING BRIDGES (Sano & Alfredsson eds, 2002), at 14-15; Nyamu- Musembi & Cornwall, supra note 10, at 17.

174.Donnelly, supra note 42, at 232-33.

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simply repackage or add labels without necessarily re-conceptualizing or changing their practice of treating rights as “… gifts, charity or policy blueprints.”175 Generally, DNGOs consider rights as highly specialized legal discourse and not multi- disciplinary.176

Furthermore, DNGOs perceive rights as state-centric, political, adversarial, judgmental, elitist and preoccupied with quick results but impractical in cases of scarce resources and competing demands.177 For example, in the UK for a long time, many voluntary organizations misperceived rights as a “far-fetched luxury,” principally of interest to expensive lawyers and celebrities.178 Others misconceived human rights as a means to advance the interference of European judges in British affairs.179 There is apprehension that the rights-based approach may not address the inequalities in society because of the ability of the powerful to manipulate the rights-based approach to serve their interests.180

Notwithstanding the above, many DNGOs and agencies have adopted the rights-based approach as previously discussed.181 Some development agencies appreciated that applying human rights principles enabled them to address the root causes of poverty in a manner that respects the agency of the people they work with.182 For example, in seeking to infuse a rights based approach in its programming, OXFAM commits itself to strengthening the accountability of duty bearers; support people to claim their rights; promote equality and inclusion in policies, services and programmes; promote provision of effective remedies; allocate resources and budgets equitably; build social norms, attitudes and behaviour and strengthen institutional capacity to base economic policies on human rights.183 Actionaid’s (AA) Accountability, Learning and Planning System (ALPS) strategy has three elements, namely: involving NGOs to manage their programmes with AA playing a supportive role; applying the principles of transparency, participation, learning, awareness of gender and power and accountability to poor people and lastly being a “reflective and reflexive” organization

175.Scott, supra note 51, at 210; UVIN, supra note 17, at 53.

176.Nyamu-Musembi & Cornwall, supra note 10, at 17.

177.Alston & Robinson, supra note 3, at 5; Robinson, supra note 3, at 32-37; F. BUTLER, HUMAN RIGHTS: WHO NEEDS THEM? USING HUMAN RIGHTS IN THE VOLUNTARY SECTOR 49 (2004); Nyamu-Musembi & Cornwall, supra note 10, at 17; Wolfensohn, supra note 162, at 21.

178.Butler, id., at 23.

179.Butler, supra note 53, at 67.

180.Alston, supra note 17, at 806.

181.Part .2.

182.ICHRP, supra note 28, at 74.

183.BUTLER, supra note 177, at 20.

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that allows partners to respond to changing situations and context.184

B. The Indivisibility of Rights: HURINGOs and the Development Agenda

HURINGOs have equally not appreciated DNGOs’ struggles as human rights struggles despite the concept of the indivisibility of rights. Surprisingly, although the rights- based approach grew out of HURINGOs’ efforts, HURINGOs have not taken the lead to apply human rights principles to them.185 Ironically, major HURINGOs have not eagerly embraced the struggles of DNGOs such as the anti-globalization crusade spearheaded by the World Social Forum. And yet, the struggle for ESCRs provides a common ground for HURINGOs and DNGOs to work together. HURINGOs contend that despite the rhetoric of the indivisibility of rights, in practice the state prioritizes economic growth to the detriment of human rights.186 Consequently, HURINGOs are dissuaded from engaging in development struggles in general for fear of marginalizing human rights.187 The ICHRP is on record as stating that joining large campaigns that are united by common values without a legal basis is risky.188 The ICHRP is of the strong opinion that

The two qualities that human rights organizations distinctively bring to advocacy are knowledge of the law and a precise grasp of institutional procedures. Certainly, they can ‘shame and blame’ those who are guilty; but so can others. The rich and passionate campaigning tradition of human rights organizations is often most effective when criticism is accompanied by precise descriptions of legal obligations. Where human rights organizations can use their well-honed capacity for argument to add credibility and effectiveness to an alliance, this will clearly be valuable. On the other hand, if human rights advocates, taken as a whole, were to surrender legal rigour for a more imprecise rhetoric, campaigns for justice would scarcely be stronger but the ability of human rights organizations to

184.R. DAVID & A. MACHINI, GOING AGAINST THE FLOW: THE STRUGGLE TO MAKE

ORGANIZATIONAL SYSTEMS PART OF THE SOLUTION RATHER THAN PART OF THE PROBLEM—LESSONS FOR CHANGE IN POLICY AND ORGANIZATIONS 8 (2004).

185.Alston, supra note 17, at 800 & 827.

186.T. Evans, International Human Rights Law as Power/Knowledge, in 27 HUM. RTS Q. 1057

(2005).

187.Alston, supra note 17, at 761.

188.ICHRP, supra note 28, at 48.

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defend vulnerable people effectively would be much reduced. Once again, in a period of polarization this is a particular challenge. Human rights organizations cannot afford to stand on the edge of events, or be seen to be compulsively parsing law; but they might do harm to the cause of human rights if from weakness or passion, they give themselves up to the forces of polarization and put ‘loyalty to the cause’ before accuracy.189

Mutunga counter-argues that the anti-globalization movements are struggles for economic, social, cultural and political justice, that:

the supercilious dismissal of people struggles for justice in the global economy illuminates the limitation of the dominant human rights discourse. … The human rights movement has failed to acknowledge that the anti-globalization movements are dealing with global forces that have minimal faith in or respect for precise descriptions of the legal obligations.190

Mostly, HURINGOs have not been active in the regional integration process. Yet, the existence of trade relations and diplomatic ties facilitate the successful enforcement of human rights in regional economic blocs.191 Moreover, all regional blocs provide for the active participation of civil society in the development processes.192

At the continental level, the African Union has categorically made human rights a key principle of its operations. The African Union provides for the building of partnerships, solidarity and cohesion between governments and all sectors of CSOs.193 It establishes the Economic, Social and Cultural Council (ECOSOCC),194 which statute was adopted in 2004. The objectives of ECOSOCC are to ensure continuous dialogue between the people of Africa; forge strong partnerships with civil society; promote civil society participation in the implementation of the AU policies and programmes; support and defend peace and security, culture of good governance, democratic principles and institutions, popular participation, human rights, freedoms and social justice; promote

189. Id, quoted in Mutunga, supra note 81, at 21-22.

190.Id., at 22.

191.Heyns & Viljoen, supra note 1, at 423 & 433.

192.African Union Constitutive Act (2000), arts 3(g) & 22; SADC Treaty (1992), art 23; EAC Treaty (1999). art 7, arts 127-129.

193.Preamble to the African Union (2000).

194.African Union Constitutive Act (2000), arts 3(g) & 22.

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gender equality and strengthen the capacities of CSOs.195 Some NGOs have attributed their lack of engagement with the AU to the criteria of observer status of the ECOSOCC. For example, to be an observer, an NGO must derive 50% of its finances from the membership.196 In addition, women’s organizations are likely to be excluded on the ground of discrimination on the basis of gender.197

SADC is yet to have a CSOs policy but works with NGOs out of personal conviction.198 Frequent change in the contact information of NGOs is also a hindrance to effective and continuous communication with NGOs.199 Likewise in East Africa, NGOs have hardly participated in the EAC activities.200 NGOs have not capitalized on the people-centred and people driven principles to demand their participation in and accountability of the EAC. The few NGOs with observer status have hardly articulated alternative agendas that integrate rights into the development discourse. By 2002, only the East African Business Council (EABC) and the East African Trade Union Coordinating Council (EATUC), East African Judges and Magistrate’s Association and Kituo Cha Katiba (KCK),201 had observer status with the EAC. By 2004, ten organizations’ applications were pending.202 By 2008, the Civil Society Forum that allows periodic consultations between the Secretary-General and civil society had not been called.203

The Consultative workshop of 2005204 recommended the establishment of the Economic, Social and Cultural Committee (ESCC) as one of the autonomous structures of the EAC.205 The EAC also noted that there were a number of organizations which

195.Statute of the ESCC of the African Union (2004) ,art. 2.

196.Id., at art. 2, rules v & vi.

197.Id., at art. 2 rule ix.

198.Interview with Madibela and Faye, Director and Technical Advisor, SADC Gender Unit, Botswana, 6 March 2008.

199.Interview with Hembe, Director HIV/AIDs, SADC Secretariat, 8 March 2008.

200.KCK EAC Fact-finding Missions (2004), at 18.

201.Report of the Committee on Fast Tracking East African Federation (2004), at 311,

Appendix X (a).

202.Id., at 312, Appendix IX (b): International Council of Social Welfare, East African Youth Forum, Legal and Human Rights Centre Tanzania, East African Youth Forum (Kenya Chapter), East African Youth Development Association, East African Fine Coffee Association, East African Book Development Association, East African Confederation of Informal Sector Organizations (CISO), and East African Sub-Regional Support Initiative for the Advancement of Women (EASSI).

203.Interview with Betty Kiraso, Deputy Secretary General, EAC, 4 May 2009, Kampala.

204.Report of the Civil Society Workshop Organized by the East African Community Secretariat from 28-29 July 2005, Arusha, Tanzania.

205.Joint Communique of the EAC Summit (2005), para.9, 29-30 May 2005.

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qualified but had not applied for observer status.206 One official wondered: “How come CSOs having powers to demand their inclusion in the debate (over the amendment of the Treaty) did not bother to do so even when some of them share the same building as the EAC Secretariat?”207 The once vibrant East Africa Youth Council has been dormant since 2000.208 Only KCK and East Africa Law Society (EALS) have actively engaged the EAC.209 However, there are many ESCRs that need to be safeguarded while promoting economic development. Moreover, the main objective of legal reform in East Africa is to facilitate economic globalization rather than the enhanced promoting and protection of human rights.210

Human rights NGOs can no longer remain aloof to the globalization and development agendas because existing voluntary codes adopted by businesses are so vague, applied in a discretionary fashion, and avoid human rights issues.211 NGOs can use the tool of litigation to stimulate public debate and prompt consumer boycotts with non-compliant businesses.212 NGOs can also ensure that community consultations take on local concerns and address the barriers to the participation of communities in local processes.213 For example, the Kenya Human Rights Commission (KHRC) successfully organized a consumer boycott of the sale of Kenyan flowers in Italy, resulting in an improvement of the working conditions of export fruit and flower industries.214 Similarly, the community builder of the year award to a company that contributes resources for social corporate responsibility in South Africa is an ideal example of how

206.Report of the Committee on Fast Tracking East African Federation (2004), 313, Appendix IX (c): EA Law Society, EA Council of NGOs, EA Federation of Employers, EA Manufacturers Association, EA Bankers Association, EA Chamber of Commerce and Industry, EA Organization of Trade Unions, EA Industries of Management, EA Media Owners Associations, EA Union of Journalists, EA Editors’ Guild, Rotary Club of EA, Lions Club of EA, EA Broadcasters Association, EA Community Abroad, Marketing Societies of EA, EA Public Relations Society, EA Cooperation Forum, EA Youth Council and EA Media Institute.

207.Member of the Legal and Harmonization Committee, 25 April 2007.

208.Interview with Deya, Executive Director, East Africa Law Society & Convenor of the Civil Society Forum, Arusha, 7 August 2007.

209.KCK EAC Fact-finding Missions (2004), at 28.

210.C.M. PETER & S. MWAKAJE, INVESTMENT IN TANZANIA: SOME COMMENTS AND ISSUES 56

(2004).

211.P. Baehr, Human Rights NGOs and Globalization, in RESPONDING TO THE HUMAN RIGHTS

DEFICIT: ESSAYS IN HONOUR OF BAS DE GAAY FORTMAN (K. Arts & P. Mihyo eds, 2003), at 36.

212.D.D. Bradlow, Differing Conceptions of Development and the Content of International Development Law, 21 SAJHR (2005), at 56 & 69.

213.Id., at 70.

214.B. Maina, Civil Society and the Private Sector, in CIVIL SOCIETY IN THE THIRD REPUBLIC

(Okello ed., 2004), at 60.

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to socialize businesses to promote human rights.215 NGOs have to strengthen the state in order to regulate businesses to guarantee human rights for all.216

At the national level, many NGOs in East and southern Africa have shunned the consultations process of donor-government poverty reduction strategies. NGOs contended that the consultations were manipulative and aimed at making NGOs endorse predetermined positions or only address non-contentious issues.217 The participation of East African NGOs in the consultations was irregular, did not have thorough critiques and consequently failed to hold governments accountable. For example, in Uganda, NGOs did not have facts and figures to support their positions.218 Similarly, in Tanzania NGOs participation was mediocre, because they were not united, and lacked technical expertise in economic and development issues.219

In South Africa, with the exception of the SANGOCO’s Poverty Hearings in 1998, there are hardly any efforts to address the rights dimensions of poverty. Furthermore, while the Mid Term Expenditure Framework was intended to be a participatory process by enabling stakeholders to scrutinize the budget, civil society was “… guilty of last minute, ad hoc responses to the budget rather than a more focused approach.”220 It is such casual participation that marginalizes NGOs from policy formulation, discourse and implementation.

215.Old Mutual, Soweto and SABC 3.

216.T. Halvorsen & G.G. Michelsen, Good Governance and Public Sector Reform: The Human Rights Consequences of Structural Adjustment Programmes, in Sano & Alfredsson eds, supra note 173, at 158; M. Kothari, Globalization, Social Action and Human Rights, in DEVELOPMENT AND SOCIAL

ACTION: SELECTED ESSAYS FROM DEVELOPMENT IN PRACTICE (Kothari & Eade eds, 1999), at 20.

217.Research on Poverty Alleviation (REPOA), Tanzania Non-Governmental Organizations: Their Perceptions of the Relationship with Government of Tanzania and Donors, and Their Role in Poverty Reduction and Development (REPOA Special Paper No. 07.21, 2007), at 18-19; M. WANDIRA, M.

WANYEKI & A. PATEL, THE PROCESS OF INTEGRATING GENDER IN THE POVERTY REDUCTION STRATEGIC PLAN PROCESS IN KENYA AND THE CHALLENGES ENCOUNTERED BY THE GENDER LOBBY GROUPS (2003), at 16 & 20; H. Kotze, Responding to the Growing Socioeconomic Crisis? A Review of Civil Society in South Africa, in THE DEEPENING DIVIDE: CIVIL SOCIETY AND DEVELOPMENT IN SOUTH AFRICA (2003), at 26-27.

218.Interview with Asiimwe-Mwesige, Programme officer, European Union Civil Society Capacity Building, Kampala, 28 August 2007; Interview with Rukare, Head of Party, European Union Civil Society Capacity Building, Kampala, 14 August 2007.

219.REPOA, supra note 217, at 15 & 27.

220.L. Verwey , K. Lefto-Everett & P. Friedman, MEDIUM TERM BUDGET POLICY STATEMENT 2007: SELECTED ISSUES (2007), at 4.

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IV. CONCLUSION

The article has justified why all NGOs should embrace human rights principles in their governance arrangements, irrespective of whether or not they define themselves as HURINGOs. To take the decision to swim off shore requires conviction and preparedness to do so, otherwise it could be misunderstood as recklessness. Requiring all NGOs to mainstream human rights, whether or not in their core mandate has caused considerable confusion in terms of practical steps to take. The tendency has been to settle for cosmetic reforms that do not challenge power inequities within organizational operations, or simply rename old strategies.

Evidently, there are tensions, contradictions and ambivalence in the process of linking human rights to governance. Numerous dilemmas coupled with a lack of crystallized consensus on how governance and human rights can or should complement each other abound. It is this ambivalence and ambiguous status that presents an opportune moment for this paper to contribute to the development of good governance and best practices based on NGO experiences, rather than reacting to already-made models. Subsequently, the plurality of interpretations is both inevitable and necessary for the strengthening of good governance and human rights as integral elements of the global agenda. Mainstreaming rights is important because human rights democratic and development discourses to which all NGOs, directly or indirectly subscribe are mutually reinforcing. In essence, the merits of human rights are that it draws attention to discrimination, tames the exercise of power and provides mechanisms to overcome arbitrariness in decision-making and in the development processes, all of which are critical aspirations of the NGO tradition, irrespective of their priorities, style and belief.

The controversy surrounding the misconception that African culture does not embrace human rights is articulated, but with a caution to desist from either the blanket rejection or the glorification of African culture. African culture is a double-edged sword capable of both enhancing and detracting from human rights. NGOs must build on the positive cultural values that resonate with human rights, rather than dismissing culture entirely as an impediment to the improved protection of human rights. This among others requires NGOs to learn from how ordinary citizens have interpreted human rights in their day to day experiences.

The relationship between DNGOs and HURINGOs is examined making a case for promoting the indivisibility of human rights, which reinforces the relevance of rights in all the policies and practices of NGOs. Just like the DNGOs cannot afford to ignore the centrality of human rights in their advocacy struggles, HURINGOs can no longer remain aloof to the globalization and development agendas of DNGOs. Thus, even HURINGOs can stimulate human rights through advocacy on business-like issues

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such as corporate social responsibility and fair business regulation. The failure to have a more effective framework to hold major actors such as NGOs accountable may erode the credibility of the human rights discourse to offer protection from abuse of power. Although much responsibility is placed upon HURINGOs to respect human rights values, all NGOs have to reflect on the way they mediate unequal power dynamics with other stakeholders, particularly in instances where the NGOs’ stakeholders have weaker social, economic and political voices. Given that there is no a single comprehensive definition of the rights-based approach, each NGO is required to critically reflect on how it has internalized the human rights principles in its policies, programmes and practices.

Consequently, this article advocates for the further evolution of the human rights discourse to codify what can currently be described as moral obligations into legal obligations. Indeed, the ECOSOC recognises the evolving relationship between NGOs and the UN and has suggested reviews to facilitate the effectiveness of the NGOs’ contribution to the UN’s work.221 The OHCHR has already taken the strategic role of articulating the human rights obligation for UN agencies which can easily be stretched to NGOs. Similarly, INGOs have taken the initiative to articulate their responsibilities under the International Accountability Charter. Likewise, the African Feminist Charter is another attempt to that effect. The Charter on Popular Participation also underlines the relationship between popular participation and empowerment and recommends that NGOs are participatory, democratic and accountable.222 The governance of NGOs is critical to the strengthening of the human rights movement. It is only when human rights become part and parcel of everyday practices and vocabulary that a culture of human rights will crystallize.

221.UN Resolution 1996/31 (1996), ¶ 17.

222.African Charter on Popular Participation (1990), part III.

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THE GHOST OF THE ORGANIZATION FOR AFRICAN

UNITY (OAU) HAUNTS AFRICA

Josephine Ndagire*

ABSTRACT

This article examines the compatibility of the African Charter on Human and Peoples’ Rights (Banjul Charter) and the Constitutive Act of the African Union. It posits that the atmosphere that inspired the Banjul Charter in the 1970s and 1980s including the ideology of the Organization of African Unity (OAU) is past. The change in the aspirations of the African peoples ushered in a new political entity—the African Union (AU) which in principle, fundamentally differs from the OAU. At the heart of the Constitutive Act of the AU is a commitment to protect human rights—a sharp contrast with the OAU Charter. The result is a political document aspiring to protect human rights more than a human rights treaty. Much as the OAU is no more, its ‘ghost’ curtails efforts to protect human rights in the contemporary context. It is on this basis that I argue that perhaps, it is time to align the Banjul Charter with the Constitutive Act.

Of all ghosts, the ghosts of our old loves are the worst—Sir Arthur Conan Doyle1

I. INTRODUCTION

The idea of human rights comprises norms, standards and principles which are implemented through institutions.2 From the onset of the human rights movement, it aspired for universal application;3 evident in the drafting process of human rights treaties and declarations such as the Universal Declaration of Human Rights (UDHR).4 Hence, historically, human rights were solely enforced through international institutions

* Doctoral candidate, University of Emory School of Law. E-mail: <[email protected]> or <[email protected]>.

1.ARTHUR CONAN DOYLE, THE VALLEY OF FEAR (2006).

2.HENRY J. STEINER & PHILLIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 131 (2000).

3.Id., at 57.

4.The preamble to the UDHR refers to the “inherent dignity and of the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world.”

See also, U. OJI UMOZUKURIKE, THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 11 (1997).

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such as the United Nations Security Council,5 the Commission on Human Rights6 and other treaty-monitoring bodies.7 The idea of the universality of human rights and international enforcement faces considerable resistance,8 which coupled with cultural relativism paved way for regional human rights systems. Regional systems tend to overcome universal shortcomings such as physical, economic, cultural, administrative and psychological diversity among people.9 This in part demonstrates the advantage regional systems enjoy over international bodies, which are characterized by a general trend of compromise.10

It is worth noting though that the UN Charter anticipated regional systems in the enforcement of international peace and security,11 although it is silent on regional human rights cooperation.12 This explains why the UN initially opposed regional human rights systems on suspicion that their creation was an attempt to oppose the universality of human rights13 by emphasizing regional cultures. The delay in the implementation of the International Covenant on Civil and Political Rights (ICCPR) however forced the UN to encourage the creation of regional human rights systems.14

5.Article 39 of the United Nations Charter (UN Charter) mandates the United Nations Security Council (hereinafter Security Council) to promote, maintain or restore international peace and security. This mandate has been interpreted as including maintenance of human rights since gross violations of human rights are a threat to international peace and security. It is on this basis that the Security Council adopted resolutions establishing the International Criminal Tribunals for the former Yugoslavia and Rwanda. See, Security Council Resolution 955 establishing the International Criminal Tribunal for Rwanda, S.C. Res 955, and 49 U. It was established in 1994 in response to the murder of an estimated 800,000 Rwandans. See also, Security Council Resolution 827 establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, S.C.Res. 827, 48 U.N.SCOR, 48th Sess, U.N.Doc. S/Res/827 (1993).

6.This Commission was replaced by the Human Rights Council. See, GA resolution 60/251 establishing the Human Rights Council. Other institutions in this category include the Commission on Crime Prevention and Criminal Justice, the Commission on the Status of Women, and the Sub- Commission on the Promotion and Protection of Human Rights.

7.These include the Committee on Economic, Social and Cultural Rights (CESCR), the Human Rights Committee (HRC), the Committee Against Torture (CAT), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Rights of the Child.

8.STEINER & ALSTON, supra note 2, at 592.

9.Id., at 781.

10.Id., at 783.

11.See, Chapter VII of the UN Charter.

12.STEINER & ALSTON, supra note 2, at 780.

13.Id.

14.Id. Note that the General Assembly adopted a resolution encouraging the creation of regional human rights systems in regions where they did not exist. See, GA Res. 32/127.

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In 1981, four years after the adoption of the General Assembly resolution calling upon states to form regional bodies, the Banjul Charter, as an international human rights instrument was enacted with the intention of promoting and protecting human rights and basic freedoms on the African continent.15 The Banjul Charter is a reflection of post colonial struggles of Africa. It was inter alia inspired by the resolve to obtain utmost independence and state sovereignty through the total liberation of Africa from colonialism, foreign domination and occupation, aggression and apartheid. Although valid causes, Africa has since embraced new aspirations key among which is the protection of fundamental rights and freedoms.

II. THE OAU ‘LIVES ON’ IN THE BANJUL CHARTER

The African Human Rights system has been described as the “… least developed… most distinctive and the most controversial.”16 In order to understand its controversy and distinctiveness, the historical factors that were at play at the time of adoption of the Banjul Charter must be analyzed. Prior to its adoption, African States had already organized themselves politically and had formed the OAU.17 The core mandate of the OAU was to safeguard the newly acquired independence of African states and territorial integrity of member states. The British Broadcasting Corporation (BBC) reported at the time that its mandate was to “decolonize the remaining bastions of white rule.”18 This claim is illustrated by the absence of an effective provision for human rights enforcement.19 It is therefore no surprise that political considerations are depicted in the Banjul Charter and in part explains its distinctiveness.

The OAU faced criticisms throughout its tenure for what most described as double standards.20 True to its mandate, the OAU played a vital role in opposing the apartheid regime in South Africa and supporting liberation movements in Zimbabwe

15.African Charter on Human and Peoples' Rights (Banjul Charter), adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. See particularly, paragraph 2 of the preamble to the Charter.

16.STEINER & ALSTON, supra note 2, at 920.

17.Charter of the Organization of African Unity (OAU Charter) was adopted on May 25, 1963 by a Conference of Heads of State and Government.

18.African States Unite Against White Rule, BBC, May 25, 1963, available at <http://news.bbc.co.uk/onthisday/hi/dates/stories/may/25/newsid_2502000/2502771.stm> (last accessed on February 6, 2008).

19.PHILIP KUNIG & COSTA RICKY MAHALU, REGIONAL PROTECTION OF HUMAN RIGHTS BY INTERNATIONAL LAW 15 (1985).

20.Id.

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and Mozambique,21 while ignoring human rights atrocities committed in Uganda, the Central African Republic and Equatorial Guinea.22

In 1979, a resolution was adopted obliging member states to protect human rights.23 The underlying reason for the resolution was to strengthen OAU’s strong opposition to the racist regime of South Africa.24 The resolution led to a conference in Banjul, Gambia in 1981 which drafted the Charter that was subsequently approved in Nairobi, Kenya.25 Keba Mbaye; a well respected African scholar and Senegalese judge who led the team that drafted the Charter remarked that Banjul “was the best that could be achieved at the time.” The Banjul Charter was what African States were willing to accept in 1981 and that it would be improved upon later through amendments or revisions.

III. TRACING OAU IDEOLOGY IN THE BANJUL CHARTER

The Banjul Charter is a political statement in many ways. Indeed, the working papers of the OAU during the drafting process bear witness to this claim.26 The distinct and controversial features of the Banjul Charter are discussed in detail below:

A. Peoples’ Rights

The idea of peoples’ rights is not unique to the Banjul Charter.27 What makes it more peculiar to the African Human Rights system is that it was innovated to form the basis

21.BBC, supra note 18.

22.KUNIG & MAHALU, supra note 19.

23.Id. The most instrumental organization in ensuring that a resolution was adopted was the International Commission of Jurists which issued a Lagos Plan in 1961. See, YASSIN EL-AYOUTY, THE OAU AFTER THIRTY YEARS 54 (1993).

24.KUNIG & MAHALU, supra note 19.

25.The OAU decision to establish a human rights Charter was taken at its 16th summit Conference at Dakar, Senegal, Decision 115 (XVI). The subsequent conference elaborated on the Dakar draft at Banjul, The Gambia. This led to the Banjul draft that was subsequently adopted in Nairobi, Kenya July 1981.

26.See, OAU Doc. AHGS/102/XVII, Nairobi, at 22; See also, OAU Doc.CM/112/Part 1,

Nairobi, at 31.

27.Art. 1(1) of the International Covenant on Civil and Political Rights (ICCPR), Art. 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Art. 1(2) of the United Nations Charter all make reference to peoples especially in relation to the right to self determination.

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of a major human rights treaty.28 The Banjul Charter provides for collective or group rights which are referred to as ‘peoples rights’ in the document. The concept of ‘peoples rights’ affirms that it is an “anti-colonial movement or decolonization and liberation movement of then subject peoples.”29

Another interpretation is that individual rights serve to protect individuals against violations from the state30 whereas group rights can only be enjoyed as a group.31 By emphasizing human rights as an aspiration for “African peoples” and not individuals, the Banjul Charter fails to strike a balance between the universality of human rights and the desire to model human rights on the African experience.32 The African understanding of group rights must be distinguished from the socialist approach because the former is built on the dialect between the individual and the community whereas the latter makes human rights dependent on the interests of the State.33

Whereas reference is made to African peoples in the preamble, the term “peoples” is not defined by the Banjul Charter, which makes it problematic. The definition was deliberately avoided because the concept has no uniform meaning, even though it is the foundation of African communities. Note that the concept is used differently in other international covenants.34 Peoples’ rights have been hailed as a tool that could be used to fight and prevent the evils that inflict humanity.35

28.GEORGE WILLIAM MUGWANYA, HUMAN RIGHTS IN AFRICA: ENHANCING HUMAN RIGHTS THROUGH THE AFRICAN REGIONAL HUMAN RIGHTS SYSTEM 211 (2003).

29.N. Barney Pityana, The Challenge of Culture for Human Rights in Africa: The African Culture in a Comparative Context, in THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS: THE

SYSTEM IN PRACTICE,1986-2000 (Malcolm Evans & Rachel Murray eds., 2002).

30.U.O.Umozurike, The African Charter on Human and Peoples’ Rights: Suggestions for More Effectiveness, 13 ANN. SURV. INTL & COMP. L. 180 (2007).

31.Id.

32.It is clear from the preamble of the Banjul Charter that human rights are viewed as very essential for the attainment of equality, justice and dignity for Africans as a race and not individual Africans. It appears that at the time, Africans sought equality and lost dignity against another group or race. The Banjul Charter was thus another tool to continue with the struggles which the OAU had already began.

33.The major distinction between the Marxist and the African approach to human rights is that the African approach is moralistic or spiritual whereas the Marxist approach is purely based on materialism.

34.The term ‘peoples’ in the ICCPR, ICESCR and the UN Charter, for instance, is used in relation to the right to self-determination to refer to people organized in states or non self governing peoples. See, the Quebec secession case cited in MARK W.JANIS &JOHN E.NOYES,INTERNATIONAL LAW, CASES AND COMMENTARY (American Casebook Series) (2006).

35.L. Sohn, International Law, cited in MUGWANYA, supra note 28, at 214. It should however be noted that the African Commission on Human and Peoples’ Rights has considered this question in relation to the right to self determination, say in the case of Katangalese Peoples’ Congress v. Zaire,

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B. Duties

The insertion of duties in the Banjul Charter is also not unique as so do many other human rights treaties. The Banjul Charter’s uniqueness is that it is the only instrument that details individual duties.36 In fact it has been criticized as being too “state- centric.”37 The duties in the Banjul Charter are a reflection of extreme nationalism and patriotism of newly independent post colonial African States which had resolved to jealously guard statehood.38

Moreover, duties also raise a question of enforcement,39 because the Charter makes no provision for enforcement of duties or remedies that would accrue to an aggrieved State and/or the community. Inclusion of duties in the Charter may lead to the prioritization of duties where the rights and duties are in conflict.40 In the past, several communist regimes in Eastern Europe invoked duties to negate the idea of human rights.41 It is therefore possible that the inclusion of duties was a compromise between several political ideologies which characterized the post colonial era—capitalist, socialist and mixed economy states. The question is whether such compromise is valid in contemporary African politics.

C. Anti-Colonialism Provisions

Almost all African States were colonized,42 and to some extent still face neo- colonialism.43 Paragraph three of the preamble provides that, “Reaffirming the pledge

Eighth Activity Report 1994-1995, Annex VI (Documents of the African Commission). The Commission however did not decide or determine who the peoples were.

36.Pityana, supra note 29, at 64.

37.Olusola Ojo & Amadu Sesay, The OAU and Human Rights: Prospects for the 1980s and Beyond, 8 HUM. RTS. Q. 96 (1986).

38.Another measure taken to guard the newly independent States was the adoption of the principle of non-interference in the internal affairs of another State. The OAU at its 16th summit conference in Monrovia, Liberia, criticized Mr. Godfrey Binaisa (then President of Uganda) for raising the question of human rights violations in the Central African Republic. See also, supra note 25, at 23.

39.Supra note 29, at 65.

40.Supra note 18, at 50. See also, supra note 27, at 229.

41.Id.

42.Liberia and Ethiopia are arguably the only two countries that were not colonized. Ethiopia was colonized by Italy between 1935 and 1936, and regained independence soon after Italy lost in World War II (WW II).

43.Neo- Colonialism is a policy where a major power uses economic and political means to perpetuate or extend its influence over underdeveloped nations or areas: It is commonly manifested in economic relations between rich and poor countries, usually the latter are forced to adopt certain measures,

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… made in Article 2 of the said Charter (OAU Charter) to eradicate all forms of colonialism from Africa …” Paragraph 8 provides that, “Conscious of their (the African member states) duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex, language, religion or political opinions …” From the reading of the above paragraphs, it goes without saying that the Banjul Charter was responsive to the political problems of the time. 44

D. Claw-back Clauses

Claw-back clauses have earned the Banjul Charter the most criticisms. The claw back clauses have two major implications: first, the rights enumerated in the charter are subject to the domestic law of the states parties; and second, domestic law which restricts the rights in the Banjul Charter should not be impugned.45 Owing to claw back clauses, some commentators have dismissed the entire Charter as irrelevant to Africa’s political life,46 while others have looked to Article 60 which implies that the Banjul Charter cannot be invoked to avoid state obligations that are enumerated in other international covenants.47 In Legal Resources Foundation v. Zambia, the Commission emphasized that “…no state party to the Charter should avoid its responsibilities by recourse to the limitations and ‘claw back’ clauses in the Charter,” and added that “… the Charter cannot be used to justify violations of sections of it.”48 The Commission’s

for example privatization of government parastatals in exchange of financial aid-this is commonly referred to as “tied aid.” Neo-colonialism has actually forced many former socialist and communist African countries to convert to capitalism. Art.21(5) of the Charter in response to neo colonialism, creates an obligation for member states to eliminate all forms of economic exploitation by international monopolies so as to enable peoples to fully benefit from their natural resources. Zionism was included because of the war between Israel and Arabs. Africa has many Arabs.

44.Namibia was the last African Country to acquire independence in 1990. This marked the end of the struggle against colonialism. The same year saw the release of Nelson Mandela from prison and the 1994 elections in South Africa marked the end of the apartheid regime. Arguably, the OAU had accomplished its major tasks. See also Uzomurike, supra note 53, at 93.

45.See supra note 27, at 268.

46.Weekly West Africa, cited in EL-AYOUTY, supra note 23.

47.Cees Flinterman & Catherine Henderson, The African Charter on Human and Peoples’ Rights, in AN INTRODUCTION TO INTERNATIONAL PROTECTION OF HUMAN RIGHTS 391 (Raija Hanski & Markku Suksi eds, 2000).

48.Communication No. 211/98 (2001), para. 70.

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decisions though authoritative, are not legally enforceable. In this regard, it may not be an easy task to remedy the shortcomings of the Banjul Charter by recourse to claw back clauses.

IV. THE CONSTITUTIVE ACT AND HUMAN RIGHTS

The creation of the African Union was first discussed at the fourth extra ordinary session of the OAU Assembly that was held in Sirte, Libya. Article 6 of the Sirte Declaration reads that:

In order to … effectively address the new social, political and economic realities in Africa and in the world (emphasis added), we are determined to fulfil our peoples’ aspirations for greater unity in conformity with the objectives of the OAU Charter and the Treaty Establishing the African Economic Community. It is also our conviction that our continental Organization needs to be revitalized in order to be able to play a more active role and continue to be relevant to the needs of our peoples and responsive to the demands of the prevailing circumstances. We are also determined to eliminate the scourge of conflicts, which constitutes a major impediment to the implementation of our development and integration agenda.49

The hasty drafting process of the Constitutive Act compared with the years it took to draft the Banjul Charter demonstrates the commitment of African leaders to embrace a new era.50 The Constitutive Act greatly impacted the Africa Human Rights System.51 The objectives of the African Union are broad. Most important for purposes of this scholarship is the express mandate of the Constitutive Act to promote human and peoples’ rights. The tone of the Constitutive Act is less politically inclined than the OAU Charter.52 Article 4(h) provides that member states have a right to intervene in the internal affairs of a member state where there are grave circumstances such as war

49.Sirte Declaration, EAHG/Draft/Decl. (IV) Rev.1 1999 (emphasis added), available online at <http://www.chr.up.ac.za/hr_docs/african/docs/ahsg/ahsg64.doc.> (accessed March 9, 2008).

50.Nsongurua J. Udombana, Can the Leopard Change its Spots? The African Union Treaty and Human Rights, 17 AM. U. INTL L. REV. 1177 (2001-2002).

51.Chidi Anselm Odinkalu, Africa’s Regional Human Rights System: Recent Developments and Jurisprudence, 2 HUM. RTS. L. REV. 99 (2002).

52.Alpha Fall, The Impact of the Constitutive Act of the African Union on Human Rights (LL.M Thesis, University of Notre Dame, 2002).

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crimes, crimes against humanity and genocide. Article 4 (h) when read together with Article 23(2) demonstrates a very big ideological difference between the OAU and the African Union.53

The Constitutive Act makes substantial reference to human rights. Article 3 (h) provides for the promotion and protection of human rights in accordance with the Banjul Charter. Article 4 (m) also makes reference to human rights by providing for the respect of human rights, democratic principles and the rule of law. Other notable developments include the obligations of states parties to promote gender equality and the sanctity of human life.54 The changes introduced by the Constitutive Act have been lauded as a “new theoretical advancement in the democratization of the continent and a rupture to the debilitating concept of non-intervention into the affairs of member countries.”55

A. The Assembly of the Union

The Assembly of the Union has close links to the African Commission on Human and Peoples’ Rights to the extent that Article 52 of the Banjul Charter mandates the former to inform the Assembly of Heads of State (under the OAU) in its report of any human rights violation. Since the Assembly of the Union replaced the Assembly of Heads of State and Government, Article 52 should be read with the necessary modification. In the alternative, the Commission may specifically make a recommendation to the Assembly of Heads of State and Governments (Assembly of the Union).56 One of its major functions in this regard is to direct the Executive Council on how to manage conflicts, wars, and other emergency situations and the restoration of peace.57

53.Article 23 provides that “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other Member States, and other measures of a political and economic nature to be determined by the Assembly.” Although the principle of non intervention is reaffirmed in the Constitutive Act, it is now clear that African States cannot invoke the Principle at the expense of human rights or national interests.

54.Art. 4(o), Constitutive Act.

55.Fall, supra note 52.

56.Art. 53, Banjul Charter.

57.Art. 1(9)(g), Constitutive Act.

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B. The Executive Council

It comprises ministers of foreign affairs or other ministers from member states.58 It mainly prepares materials for the Assembly of the Union.59 General areas of its focus include, inter alia, social security, agriculture, transport and communications, food, water resources and irrigation, energy, industry and minerals, education and culture insurance and foreign trade.60 When these issues are analyzed, there is no doubt that they are matters of human rights concern.

C. The African Court of Justice

The African Court of Justice of the African Union has its roots in Article 18 of the Constitutive Act which envisages its establishment. The Court was established by the Protocol of the Court of Justice of the African Union. According to Article 19 of the Protocol, the Court shall have jurisdiction over all disputes and applications referred to it in accordance with the Act. From its mandate, it is clear that there is plenty of room for the Court to litigate human rights issues. This is evident in the wording of the Protocol which for instance allows the Court to “interpret any question of international law.”61 Another basis for human rights jurisdiction of the Court under the Protocol is the mandate to “… interpret … matters … in other agreements.”62 The “other” agreements can be said to include the Banjul Charter.

However, the anticipation of the African Court of Justice as a forum for human rights litigation is quite ambitious in light of the Protocol to the Banjul Charter on the establishment of an African Court on Human and Peoples’ Rights. Interestingly, Article 4 mandates the African Court on Human and Peoples’ Rights to make advisory opinions to the OAU (read AU) on any matter relating to the Banjul Charter or any other treaty. In response to the potential duplicity of functions of the two courts, they were merged by the Protocol on the Statute on the African Court on Justice and Human Rights, which is not yet in force.

58.Id., art. 10(1).

59.Id.

60.Id., art. 13.

61.Art. 19(c).

62.Art. 19(e).

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D. The Dilemma

Whereas the Constitutive Act is human rights oriented, it makes little reference to the Banjul Charter. What is even more surprising is the exclusion of the African Commission on Human and Peoples’ Rights from the organs of the African Union. Given the importance of the Commission and the Court on Human Rights, there is need to forge a nexus. Gutto warns that, “the failure to anchor the African human rights system as a principal system of the … AU is likely to reproduce the marginalization of the collective protection and promotion of human and peoples’ rights on the continent.”63 The failure or difficulty in linking the two may be attributed to the difference in the theoretical approaches between the two “systems.” The African Union as a political organ is much needed in human rights to the extent that it can be used as an enforcement mechanism. Possible suggestions or solutions to this problem are considered next.

V. NEW WINE, OLD SKINS: A CASE FOR RETHINKING THE BANJUL

CHARTER

The resolve to safeguard human rights is a milestone in Africa’s history and must not be curtailed by a defective human rights treaty. If not revisited, the repercussions are likely to be twofold: first, efforts to safeguard human rights by new institutions (African Court on Human and Peoples’ Rights or the ‘future’ African Court of Justice and Human Rights) though well intentioned will follow in the footsteps of the African Commission—a trap laid by the OAU; and second, there is a real risk of over- legalization.64 Over legalization takes two forms, that is that it changes the initial treaty bargains and the second is that it improves enforcement mechanisms.65 Enforcement mechanisms should be very cautious because international law, which is essentially consensual,66 and over-legalization may lead to the denunciation of a treaty.

63.Shadrack Gutto, The Reform and Renewal of the African Regional Human and Peoples’ Rights System, 2 AFR. HUM. RTS L. J. 175 (2002).

64.Laurence R. Helfer, Over-legalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832 (2002).

65.Id.

66.<http://www.law.uga.edu/~bodansky/courses/International_Law/class04.html> (accessed on April 10, 2008). Professor Bondasky explains that Consensualism, also known as voluntarism, is a theory of International law which states that international law is based on the free will of states. The rationale is that states are sovereign entities and hence they can only be bound by that to which they have consented. In other words, the State has a “will, moral authority, the power to consent, to enter into

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A. Exorcizing the OAU Ghost from the Charter

Article 68 of the Banjul Charter provides for amendment. Some however favor reform through institutional practice citing the need for stability.67 Proponents for institutional reform argue that necessary reforms of the Charter can be attained through institutions mandated to interpret it.68 In support of that claim, the Commission’s interpretation of claw back clauses is often cited.69 However, by expansively interpreting the Charter in order to remedy its flaws, the Commission acts ultra vires and strips the Charter of its integrity.70

B. So, Exorcizing What Ghost?

All claw back clauses must be struck out of the Charter because they hinder effective enforcement of human rights. For example, Article 9 provides for the right to receive information and to express and disseminate opinions within the law,71 thus effectively subjecting the Banjul Charter to the national law. While the Commission has interpreted the phrase broadly,72 it in essence usurps the authority of the Charter. Heyns observes that:

This creative, if somewhat desperate move on the part of the Commission to save the Charter from itself, should be succeeded by necessary modification of the Charter, given that the words of the

relations to conclude agreements, to form associations.” When this theory is adapted to the Africa Human Rights System, it would mean that as far as African States are concerned, they are committed to Human Rights Promotion and Protection only as far a as the Banjul Charter provides. This is ironical because it is clear from the Constitutive Act and the Protocol Establishing the African Court that African States are more ready to promote and protect human rights contrary to what they were willing to do twenty one years ago (this is the time lapse between the Banjul Charter and the Constitutive Act).

67.Christof Heyns, The African Regional Human Rights System: In Need of Reform? 1 AFR. HUM. RTS L. J. 157 (2002).

68.Id.

69.Id., at 284 (showing that the Commission derives its authority from other human rights instruments in accordance with Articles 60 & 61 of the Banjul Charter. Through this avenue, the Commission has been able to narrowly construe and claw back clauses).

70.Id.

71.Other rights include the right to property which is subject to the interest of the community (this has roots in the African understanding of society, which is communal) and in accordance with appropriate laws.

72.See, Civil Liberties Organization v. Nigeria, Communication 101/93.

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Charter are no longer understood, at least by the Commission, to have their ordinary meaning … Because the Commission could not follow the provisions of the Charter, the provisions of the Charter now have to follow the Commission.73

The proposal to amend the Banjul Charter in this regard is rooted in the fact that the factors that prompted the claw back clauses, that is, the “jealous” guarding of the newly acquired independence have slowly faded away. The Banjul Charter was borne by an organization immersed in the most radical construction of state sovereignty.74 State sovereignty when coupled with the non-interference principle led to a highly compromised human rights document.

The Banjul Charter excludes some internationally recognized human rights.75 These include: the right to respect of private life, home and correspondence,76 the right to freedom from forced or compulsory labor,77 the right to equality in marriage, during and at dissolution,78 the right to enter marriage with full and free consent of intending spouses,79 the right to form and join trade unions and the right to vote.80 Even the recognized rights such as minimum guarantees of an accused person are by far inadequate.81 The Commission or the Court may have to adopt a very expansive

73.See supra note 67, at 161.

74.Supra note 50, at 1207.

75.Supra note 29, at 344. See also, supra note 47, at 159.

76.Id.

77.Id.

78.Id.

79.Id.

80.Supra note 27, at 159. It should however be noted that the Banjul Charter does make provision for what could reasonably be construed as the right to vote in Art.13 (1). The vagueness or indirectness of the provision has led some to consider the right non-existent in the Charter and to call for a more specific and clear provision.

81.Article 6 of the Banjul Charter merely states that; “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.” Contrast the narrowly constructed Art. 6 above with the broad and elaborate Art. 5 of the European Convention on Human Rights which provides that:

1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him

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interpretation of the right to a fair trial in order to apply the internationally recognized rights of an accused person in accordance with Article 60. The challenge with this approach is that only the Commission and not the Court is empowered to rely on other international instruments to interpret the Banjul Charter.82 The right to life provided for in Article 4 as the basis for the enjoyment of all other rights requires elaboration. The exact incidences when the right should be deprived should be laid down as witnessed in other international and regional human rights instruments.83

before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Article 7 of the American Convention on Human Rights is equally elaborate and need not be reproduced and so is Article 9 of the International Covenant on Civil and Political Rights. Therefore, the Banjul Charter would do very well to give states the exact limits within which the right to liberty can be deprived, given the political turmoil in Africa and the rampart un lawful arrests and detentions especially of political opponents. See also, MUGWANYA, supra note 28, at 302.

82. See supra note 47.

83. Article 4 of the Banjul Charter reads: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. This should be contrasted with the Article 6 of the International Covenant on Civil and Political rights which provides that:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

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Still on the normative content of the Banjul Charter, it needs to be strengthened in terms of state obligations and commitment. The new resolve and determination of states to respect human rights should be borrowed from the Constitutive Act. Paragraph 9 of the preamble to the Constitutive Act provides that, “DETERMINED to promote and protect human and peoples’ rights …” This should be contrasted with Paragraph 11 of the preamble to the Banjul Charter which states that, “Firmly convinced of their duty to promote and protect human and people' rights and freedoms taking into account the importance traditionally attached to these rights and freedoms in Africa…” The two paragraphs illustrate a variance in tone and the level of commitment to human rights in both instruments. This runs throughout the Banjul Charter, as noted by Heyns, Article 1 which lays down state obligations needs to be revisited.84

The powers of the African Commission on Human and Peoples Rights need to be broadened and made clear.85 The Commission needs to be free to operate without

2.In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3.When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4.Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5.Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6.Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

The Banjul Charter by failing to lay down similar boundaries purports to take away the internationally accepted limits within which the right to life can be deprived, this is not withstanding the fact that Art.60 of the Banjul Charter provides for the use of other international instruments.

84.Heyns notes that Art.1 is “a very weak way” of establishing State obligations because it

simply states that, “The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.” Heyns rightly suggests that the language should be much firmer and assertive or certain, say the Article should state , that “states parties undertake…”It should not be a mere promise or anticipatory obligation. See supra, note 67.

85. Id.

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restrictions. Much as this is not the case in practice any more, the mandate of the Commission needs to be reflective of what is done in practice.86 With regard to confidentiality of measures to be taken by the Commission, it has remedied this by publishing its decisions, recommendations and findings.87 While the Commission has undertaken several functions such as monitoring compliance of member states with the Banjul Charter, it is not expressly mandated to do so.88 Additionally, the Commission has developed a practice of remedying human rights violations. The Banjul Charter is however silent on the findings that can be made by the Commission and whether or not it can award remedies and if so, what kind of remedies?89 Even more interesting, the Commission is not authorized by the Banjul Charter to consider state reports90 but was authorized by the Assembly of States at its own request to consider state reports.91

The attempt to amend the Banjul Charter through informal agreements is ineffective because what is of most importance is what the Charter actually states. There is therefore an urgent need to clearly spell out what the Commission can or cannot do, otherwise for the Banjul Charter to say one thing and the Commission to do another, ‘mocks’ its legitimacy.

VI. CONCLUSION

The OAU was indeed “…a symbol and embodiment of age-old Pan-Africa yearnings

...”92 This article acknowledges the achievements of the OAU and recognizes that it arguably executed its mandate—which excluded human rights protection, effectively. Criticism of the Banjul Charter should therefore be grounded in a historical context, heeding the words of Keba Mbaye that it was the “best that could be achieved at the time.” The article traces the “age-old Pan-Africa yearnings” in the Banjul Charter and

86. Article 59 of the Banjul Charter provides that:

1.All measures taken within the provisions of the present Chapter shall remain confidential until such a time as the Assembly of Heads of State and Government shall otherwise decide. . .

2.The report on the activities of the Commission shall be published by its Chairman after it has been considered by the Assembly of Heads of State and Government.

87.Gutto, supra note 63, at 180.

88.See supra note 67, at 162.

89.Id., at 160.

90.Id.

91.Franz Viljoen, Overview of the African Regional Human Rights System, cited in Heyns, supra note 47, at 164.

92.Centre for Human Rights, The African Human Rights System, available online at, <http://www.chr.up.ac.za/centre_publications/ahrs/oau.html> (accessed January 4, 2008).

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holds them responsible for its flaws and challenges facing human rights enforcement in Africa. To its credit, the Charter left room for alteration in the hope that what could not be achieved then could be realized at a future time. The article argues that the time is ripe for alteration. Every last trace of the OAU ideology in the Charter must be replaced with a spirit commensurate with contemporary aspirations of the African peoples and the Constitutive Act so that the OAU ghost haunts Africa no more.

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INTERNATIONAL HUMAN RIGHTS FRAMEWORK ON ACCESS TO CONTRACEPTION FOR ADOLESCENTS IN AFRICA

Ebenezer Durojaye*

ABSTRACT

This article examines threats to adolescents’ lives and physical and mental well-being, which may arise due to lack of access to contraceptive information and services. It then considers the health benefits of ensuring access to contraceptive information and services for adolescents in Africa. More importantly, the article discusses certain human rights that can be invoked to realize access to contraceptive information and services for adolescents. It concludes that in line with their obligations under international law, African governments need to do more than what they are presently doing with regard to meeting the sexual and reproductive health needs of adolescents in the region.

I. INTRODUCTION

Reproductive health eludes many of the world's people because of such factors as: inadequate levels of knowledge about human sexuality and inappropriate or poor- quality reproductive health information and services; the prevalence of high-risk sexual behaviour; discriminatory social practices; negative attitudes towards women and girls; and the limited power many women and girls have over their sexual and reproductive lives. Adolescents are particularly vulnerable because of their lack of information and access to relevant services in most countries.1

Adolescence is a critical period of transition to adulthood. Today, it is estimated that nearly 1.1 billion people of the world’s population (85 per cent of them living in developing countries) are adolescents, half of which will have sexual

* Doctoral Candidate and Research Assistant, Department of Constitutional Law, University of the Free State, South Africa. E-mail: <[email protected]> The author is grateful to Professors Charles Ngwena of the University of the Free State and Akin Oyebode of the University of Lagos for their encouragement, and to Nontobeko Ncinitwa for her kind support.

1. Report of the International Conference on Population and Development (ICPD), UN Doc A/CONF.171/13 (1994), ¶ 7.3.

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intercourse by the age of 16 and most of them by 20.2 Apart from grappling with problems such as conflicts and poverty, Africa has continued to bear the greatest burden of sexual and reproductive ill-health in the world. While this region constitutes only 10 per cent of the world’s population, it is home to about 60 per cent of people living with HIV. Recent figures show that of about 33 million people said to be living with HIV worldwide, Africa constitutes 22 million of these figures.3 The majority of the newly infected and mortality resulting from HIV/AIDS complications are found in Africa. The worst affected by these sexual and reproductive health challenges are female adolescents in the region.

In many parts of the world, including Africa, adolescents are grappling with the physical and emotional transformations that usually accompany their change of status. Many of them are becoming sexually active at an earlier age than before. Yet majority of adolescents lack proper access to information and services relating to their sexuality, especially with regard to contraception. Over the years, sexual and reproductive health needs of adolescents have continued to be ignored or treated with levity. This in turn has led to unmet needs of adolescents’ sexual health needs. It is estimated that about 15 million adolescents within the ages of 15-19 give birth annually.4 Many of these births occur in developing countries, where adolescents lack access to comprehensive sexual healthcare services.

The average rate for births per 1000 among young women in sub-Saharan Africa is put at about 143 compared to 25 and 59 in Europe and Central Asia respectively.5 Equally, sexually transmitted infections (STIs), excluding HIV/AIDS, are the second most important cause of loss of health in women especially young women.6 Adolescents remain particularly susceptible to sexual and reproductive health problems due to the fact that they often experience unexpected sex and find access to health services difficult. It is estimated that over 4 million unsafe abortions, especially

2.A. Grunseit, The Impact of HIV and Sexual Health Education on the Sexual Behaviour of Young People: A Review Update 7 (1997). Adolescents are often described as people within the ages of 10-19 while young people are 15-24 years. See, UNDP, UNFPA, WHO AND WORLD BANK, PROGRESS IN REPRODUCTIVEHEALTHRESEARCH (Special Programme of Research, Development and Research Training in Human Reproduction, 2002), at 1.

3.UNAIDS, REPORT ON THE GLOBAL AIDS EPIDEMIC 20 (2010).

4.M. DE BRUYN & S. PARKER, ADOLESCENTS, UNWANTED PREGNANCY AND ABORTION: POLICES, COUNSELING AND CLINICAL CARE 7 (2004).

5.WORLD HEALTH ORGANIZATION, CONTRACEPTION ISSUES IN ADOLESCENTS HEALTH AND DEVELOPMENT 6 (2004).

6.A. Glasier et al, Sexual and Reproductive Health: A Matter of Life and Death, 368 LANCET

1595 (2006).

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among young women, occur in the region every year.7 Moreover, approximately 55 per cent of unmarried adolescents in West Africa, 47 per cent in Eastern and Southern Africa and 32 per cent in Central Africa have an unmet need for contraception.8

It should be noted that in the last 50 or more years, efforts have been made to ensure that access to modern contraception for all women moves from being merely a key element in primary healthcare services to being a basic human rights of women. Thus, at several meetings and fora such as the International Conference on Population and Development (ICPD)9 and the Beijing Platform of Action,10 including their follow- up meetings,11 it has been reiterated that couples and individuals have the right to freely and responsibly decide on matters related to their sexuality. Despite these developments, however, a significant number of adolescents in Africa still lack adequate access to contraceptive information and services.

Against this backdrop, this article examines the importance of ensuring access to contraceptive information and services to adolescents in Africa. The article examines threats to adolescents’ lives and physical and mental well-being which may arise due to lack of access to contraceptive services. Emphasis is paid to two major health challenges—unwanted pregnancy and the HIV/AIDS pandemic. It then considers the health benefits of ensuring access to contraceptive information and services to adolescents in the region. More importantly, the article discusses certain human rights that can be invoked to realize access to contraceptive information and services to adolescents. It equally considers the interpretations given to these rights by treaty monitoring bodies. It concludes that, in line with their obligations under international law, African governments need to do more than what they are presently doing with regard to meeting the sexual and reproductive health needs of adolescents in the region.

7.Id. See, E. Ahman & I. Shah, Unsafe Abortion Worldwide Estimates for 2000, 10 REPRODUCTIVE HEALTH MATTERS (2002), at 13-17.

8.A.E. BIDDLECOM ET AL, PROTECTING THE NEXT GENERATION IN SUB-SAHARAN AFRICA:

LEARNING FROM ADOLESCENTS TO PREVENT HIV AND UNINTENDED PREGNANCIES 17 (2007).

9.ICPD, supra note 1.

10.UN, FOURTH WORLD CONFERENCE ON WOMEN (Beijing, 15 September 1995), A/CONF.177/20.

11.Key Actions for the Further Implementation of the Programme of Action of the International Conference on Population and Development,(ICPD +5), U.N. GAOR, 21st Special Sess., New York, United States, June 30 – July 2, 1999, U.N. Doc.A/S-21/5/Add.1 (1999) (hereinafter ICPD+5 Key Actions).

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II. THE IMPORTANCE OF ACCESS TO CONTRACEPTION FOR

ADOLESCENTS

Contraception provides important options for sexually active adolescents to avoid unwanted pregnancies and sexually transmitted infections (STIs), including HIV. Ensuring access to information and services in relation to contraception to adolescents, not only reduces their risk of exposure to serious sexual harms, it could also promote their educational, occupational and social opportunities.12 While it has been noted that contraception use across the world has increased over the years, disparity still exists in terms of regions and groups having access to contraception. Many parts of developing countries, particularly Africa, still lack adequate access to contraception and young women among all others are often denied access to contraceptive information and services.

Without access to modern contraception, adolescents’ (especially female adolescents) ability to develop their full human potential is retarded, and the public health suffers.13 As mentioned earlier, unmet need for contraception remains high, and unintended pregnancies are a major contributor to the overall burden of disease in the developing world.14 A report has shown that the proportion of currently pregnant women under the age of 20 in Ghana, Kenya and Namibia who reported that there pregnancies were mistimed or unwanted was 46 per cent, 50 per cent and 55 per cent respectively.15 In a country as Nigeria, a report as far back as 1998 indicated that almost one million girls in the country became pregnant each year and most of these pregnancies were either unwanted or unintended.16 More recent studies have shown that the situation has not changed. For instance, a study conducted among women, majority of whom were under 30 years in about eight states in Nigeria, has revealed that about 28 per cent of them had experienced an unwanted pregnancy at some point in their lives. Of this figure, the majority of these pregnancies occurred among unmarried

12.CENTER FOR REPRODUCTIVE LAW AND POLICY (CRLP) & CHILD AND LAW FOUNDATION (CLF), STATE OF DENIAL: ADOLESCENTS REPRODUCTIVE HEALTH IN ZIMBABWE 17 (2002) (hereinafter CRLP & CLF).

13.See, M.J Welsh, J. Stanback & J. Shelton, Access to Modern Contraception, 3 BEST

PRACTICE AND RESEARCH IN CLINICAL OBSTETRICS AND GYNECOLOGY (2006), at 325.

14.J. Ross & W. Winfrey, Unmet need for Contraception in the Developing World and Former Soviet Union: An Updated Estimate, 28 INTERNATIONAL FAMILY PLANNING PERSPECTIVES (2002).

15.See, C. PARKER, ADOLESCENTS AND EMERGENCY CONTRACEPTIVE PILLS IN DEVELOPING

COUNTRIES 1 (2005).

16.UNFPA, STATE OF THE WORLD POPULATION REPORT (1998).

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women.17 Similarly, a study among adolescents in South Africa has shown that about 40 per cent of adolescents in the ages of 15-19 had ever been pregnant.18 This percentage varies from one province to another and from rural areas to urban areas.

There are several health consequences that often arise as a result of early or unwanted pregnancies among young people. It has been shown that pregnancies among adolescents within the ages of 15-19 can be very risky as they are more likely to die due to pregnancy-related complications compared to adolescents in their 20s. Also, it has been noted that if maternal illnesses are included, unintended births result in the loss of 4.5 million disability-adjusted life years each year.19 The burden of maternal mortality is greatest where resources are most scarce, with 99 per cent of the estimated half a million maternal deaths each year occurring in developing countries. It has been reported that approximately 45 million unintended pregnancies end in abortion each year. More than 40 per cent of these occur among young women aged 15-24 and under unsafe conditions, which can lead to loss of fertility and even death.20 Early or unwanted pregnancy among adolescents is not only dangerous for the young mother but can also endanger the life of the unborn child since the infants of teenagers have higher rates of premature birth, lower weights and higher mortality rates.21

Apart from the risk to the health of adolescents, unwanted pregnancy also brings along with it adverse social and economic consequences for an adolescent. Because premarital pregnancy is usually frowned upon in many African communities, unmarried adolescent girls who get pregnant may likely experience violence or even be disowned by their parents.22 Pregnancy among female adolescents may severely limit their opportunity to pursue their education and render them economically dependent on partners or family members. Access to comprehensive information and services on contraception can avoid these deleterious consequences to adolescents.

17.G. Sedge et al, Unwanted Pregnancy and Associated Factors among Nigerian Women, 32 INTERNATIONAL FAMILY PLANNING PERSPECTIVES (2006).

18.DEPARTMENT OF HEALTH, SOUTH AFRICAN DEMOGRAPHIC AND HEALTH SURVEY 1998

(1998), at 143.

19.M. COLLUBIEM, M. GERASSU, & J. CLELAND, NON-USE AND USE OF EFFECTIVE METHODS

OF CONTRACEPTION:COMPARATIVE QUANTIFICATION OF HEALTH RISKS,GLOBAL AND REGIONAL BURDEN OF DISEASE ATTRIBUTABLE TO SELECTED RISK FACTORS (2004).

20. WORLD HEALTH ORGANIZATION, REPRODUCTIVE HEALTH STRATEGY TO ACCELERATE PROGRESS TOWARDS THE ATTAINMENT OF INTERNATIONAL DEVELOPMENT GOALS AND TARGETS 7(2004).

21.PARKER, supra note 15, at 2.

22.See, C. ALISTER ET AL, ADOLESCENT SEXUAL AND REPRODUCTIVE HEALTH IN MALAWI: A SYNTHESIS OF RESEARCH EVIDENCE (Allan Guttmacher Institute Occasional Report 15, 2004), at 14.

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In addition to the problem of unwanted pregnancies among adolescents in Africa, there is also the challenge of STIs, including HIV/AIDS. The negative impacts of unprotected sex among adolescents are more serious among the females compared to their male counterparts. This is because women are more susceptible to HIV infection than men due to the fact that the greater area of a woman’s mucous membrane is often exposed during sex.23 This usually accounts for the higher prevalence of STIs other than HIV among women than men. A report on the analysis of HIV prevalence in Ghana revealed that the HIV positive sero-status among young women was due to their engagement in sexual activities at a young age. A study in Malawi found that about 20 per cent of Malawian young people aged 15-24 (with young women five times more likely than men) are HIV positive.24

In South Africa, a report indicated that the high HIV prevalence among young women compared to their male counterparts.25 This high prevalence among young women cannot be isolated from the high rate of sexual violence in South Africa. Indeed, it has been reported that South Africa has one of the worst incidences of sexual violence in the world.26 With this great challenge posed by the HIV/AIDS pandemic, the role of effective contraception in the primary prevention of mother-to-child transmission outlined by the World Health Organization (WHO) provides yet another compelling rationale to expand access to contraception for all women, especially young women.27 At the level of an individual woman, lack of access to contraception or the empowering knowledge that leads to its use has frustrated the aspirations of generations of women, especially young women worldwide, and has robbed societies of their potential intellectual contributions.28

23.A.E. Biddlecom et al, Women, Gender and HIV/AIDS: Women Bear the Heaviest HIV/AIDS Burden, COUNTDOWN 2015: SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS FOR ALL (2004), at 65-68.

24.See, H. Chendi, HIV/AIDS Life Skills Progammes in Southern Africa: The Case of Malawi (unpublished working paper), cited in ALISTER et al, supra note 22.

25.See, DEPARTMENT OF HEALTH, SOUTH AFRICA NATIONAL HIV AND SYPHILIS PREVALENCE

SURVEY 2006 (2007), at 7.

26.HUMAN RIGHTS WATCH, SCARED AT SCHOOL: SEXUAL VIOLENCE AGAINST GIRLS IN SOUTH AFRICAN SCHOOLS 13 (2001).

27.H.W. Reynolds et al, Contraception’s Proved Potential to fight HIV, 81 SEXUALLY

TRANSMITTED INFECTIONS 184 (2005).

28.WORLD HEALTH ORGANIZATION, STRATEGIC APPROACHES TO THE PREVENTION OF HIV INFECTION IN INFANTS (2003).

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III. BARRIERS TO ACCESS TO CONTRACEPTION FOR ADOLESCENTS

In Africa, there are various barriers to access to contraceptive information and services. Some of the factors responsible for high teenage pregnancies and HIV prevalence in Africa include lack of access to accurate sexual and reproductive health information and services, incidences of unprotected sex and poor contraceptive use among sexually active adolescents, gender inequality and unfriendly nature of the health care setting. This section of the article now considers some of these factors.

A. Limited Access to Sexual and Reproductive Information

One of the major barriers to access to the use of contraception in Africa is ignorance on the part of adolescents. Many adolescents lack adequate knowledge and information with regard to their sexuality. Thus, when they are growing up and becoming sexually active they tend to know little or nothing about contraception. They are, therefore, unable to prevent unwanted pregnancies or STIs.

In many parts of Africa, discussions about sex or sexuality is regarded as taboo. Therefore, most parents shy away from discussing such an issue with their children. Hence, rather than relying on information from parents or guardians, studies have shown that most adolescents look elsewhere for information as regards their sexuality.29 For instance, a study has shown that most adolescents’ source of information about sexuality is from either their peers or the media.30 Most parents forget to realise the fact that they are the primary sexuality educators of their children. Oftentimes, in the name of tradition or religion, parents deliberately eschew talking to their young ones about their sexuality. Sometimes parents even deliberately pass wrong messages across to adolescents that may rather confuse or even mislead them.31 But the truth remains that adolescents want to be talked to by their parents or guardians.

A compilation of data from Demographic and Health Surveys since 1990 has shown that quite a substantial number of adolescent women in about 37 countries in the

29.O. Alubo, Adolescent Reproductive Health Practices in Nigeria, 5AFR.J.REPROD.HEALTH

(2005), at 117.

30.A.M. Sunmola et al, Reproductive Knowledge, Sexual Behaviour and Contraceptive Use Among Adolescents in Niger State of Nigeria, 6 AFR. J. REPROD, HEALTH (2002), at 82-92.

31.J. Hughes & A.P. McCauley, Improving the Fit: Adolescents’ Needs and Future Programmes for Sexual and Reproductive Health in Developing Countries, 29 STUDIES IN FAMILY

PLANNING 233 (1998).

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world can at least identify one form of contraception.32 The compilation similarly reveals that in about 21 countries, eight out of ten or more adolescent women are aware of one method of contraception. However, this study shows great disparity in the level of knowledge found among adolescents in sub-Saharan Africa. For instance, knowledge is found to be lowest in a country as Madagascar, where fewer than half of all adolescent women know of one method, whereas knowledge is highest in countries such as Kenya, Rwanda and Zimbabwe, where at least close to 90 per cent of adolescent women show familiarity with some contraceptive methods.33

Even when adolescents are aware of or have knowledge of contraception, many of them do not use contraception regularly. For instance, a study among adolescents between the ages of 16-19 who had had sex in the last three months in Ghana, indicated that only 64 per cent of males and 54 per cent of females not in a union, and 38 per cent of females in a union reported using a modern contraceptive method. This provides an indication that general knowledge of contraception on the part of adolescents is not the same as having a deep understanding of the use of contraception.

B. Gender Inequality

Gender is a critical issue in ensuring access to preventive health goods and services such as contraception. Gender-based inequalities limit access to preventive health care information, goods and services such as contraception. It equally makes it difficult for girls to negotiate contraceptive use with their partners. All over the world, and especially Africa, boys and girls are treated differently. Girls generally, unlike boys who can flaunt their sexuality, are expected to be sexually passive and are not expected to exhibit any knowledge about their sexuality. Cultural norms are widely held in many African societies that women should be inexperienced and naive about sexual matters and that pleasing men is the primary goal of sex.34 Therefore, most parents do not discuss about sex with their adolescent girls nor do they allow them to seek information related to their sexuality.

Thus, gender-based inequalities may put girls and young women at increased risk of acquiring STIs, including HIV, and may damage their physical and mental

32.A.K. Blanc & A.A Way, Sexual Behaviour and Contraceptive Knowledge and Use Among Adolescents in Developing Countries, 29 STUDIES IN FAMILY PLANNING (1998).

33.Id.

34.See e.g., ALISTER ET AL, supra note 22, at 13. See also, C. HICKEY, FACTORS EXPLAINING OBSERVED PATTERN OF SEXUAL BEHAVIOUR: PHASE 2 LONGITUDINAL STUDY FINAL REPORT (1999).

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health.35 Mensch et al have succinctly captured the disadvantage position of girls in many societies as follows:

During adolescence, the world expounds for boys and contracts for girls. Boys enjoy new privileges reserved for men, girls endure new restrictions for women. Boys gain autonomy, mobility, opportunity and power (including power over girls’ sexual and reproductive lives), girls are systematically deprived of these rights.36

In addressing these inequalities, it is important to consider the different needs and constraints of young women, and to design interventions accordingly.37 Social, educational, religious and economic inequalities underlie the reasons why girls and young women often do not seek or use contraceptive services. Moreover, in many African countries, socio-cultural factors often limit access to sexual health including information on contraception to girls. Thus, they do not know about them, are not allowed by their families to use them, or do not have money to pay for them.38

Understanding the social position of girls and young women within societies and population sub-groups is crucial to identifying strategies for the effective provision of contraceptive services to all adolescents, especially female adolescents. In many African societies where a belief in male supremacy co-exists with restrictive social structures that limit women's economic, social and legal independence, men often maintain strong control over female sexuality.39 The result is that even when contraception is available, a female adolescent may be unable to use it because of power imbalance. This is particularly true in the case of condoms, which often requires the cooperation of men. Thus, there has been a call in recent times for a woman-centered contraception such as the microbicides in the fight against HIV/AIDS in Africa.40

35.G. SEN ET AL, UNEQUAL, UNFAIR, INEFFECTIVE AND INEFFICIENT GENDER INEQUALITY IN HEALTH: WHY IT EXISTS AND HOW WE CAN CHANGE IT 1 (2007).

36.B.S. MENSCH ET AL,THE UNCHARTED PASSAGE:GIRLS’ADOLESCENCE IN THE DEVELOPING

WORLD 2 (1998).

37.K.L. DEHNE & G. RIEDNER, SEXUALLY TRANSMITTED INFECTIONS AMONG ADOLESCENTS: THE NEED FOR ADEQUATE HEALTH SERVICES (2005), at ix.

38.A. Germain, Reproductive Health and Human Right, 363 LANCET (2004), at 65–66.

39.M.N. Kisekka, The Culture of Silence: Reproductive Tract Infections Among Women in the Third World, available online at <http://www.iwhc.org/docUploads/CULTUREOFSILENCE.PDF > (accessed on 11 March 2009).

40.See e.g., E.T. Durojaye & A. Muchiri, Addressing the Link between Gender Inequality and Access to Microbicides in HIV/AIDS Response in Africa, 16 AFR. J. INTL & COMP. L. (2008).

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C. Challenges in the Health Care Setting

Many adolescents in developing countries including Africa avoid using the health setting for fear of stigma or unwelcoming attitudes on the part of health care providers. Moreover, adolescents, particularly female adolescents are often uncertain whether their visits to health care setting to seek sexual health services, such as contraceptive services, will be made known to their parents. Adolescents are quite sensitive to their surroundings especially when they have become sexually active, hence, they tend to show some discomfort when they are not certain this fact will be kept away from their parents or guardians.41 While commenting on the challenges in the health care sector limiting access to emergency contraception (EC) in developing countries, Shiappacasse and Diaz have observed that lack of privacy; unfriendly attitudes towards adolescents and high cost of the EC often act as stumbling blocks to adolescents’ access to the product.42

Hobcraft and Baker have identified four major barriers to adolescents’ access to sexual and reproductive treatment in the health care setting. These are poor remuneration of health care providers, a working environment poorly equipped to deal with young people, personal biases of health care providers and uncoordinated parallel programmes in the health care system.43 Thus, even when many adolescents have indicated that their preferred source of contraceptive services is either a public clinic or hospital most of them do not use either of these medium.

A study among sexually experienced adolescents in Ghana, who knew a source for contraceptive or STI treatment, has shown that 53 per cent reported that feelings of shyness, or embarrassment were a barrier to obtaining contraceptives.44 These concerns are neither limited to EC nor to developing countries alone, they apply to other forms of sexual health services and to developed countries as well.45 For instance, a study among middle high school students in Los Angeles, US found that though there is a

41.See e.g., A.S. Erukhar et al, What is Youth-Friendly? Adolescents’ Preference for Reproductive Health Services in Kenya and Zimbabwe, 9 AFR. J. REPROD. HEALTH 52 (2005).

42.V. Shiappacasse & S. Diaz, Access to Emergency Contraception, 94 INTL J. GYN. & OBST.

302 (2006).

43.G. Hobcraft & T. Baker, Special Needs of Adolescent and Young Women in Accessing Reproductive Health: Promoting Partnership between Young People and Health Care Providers, in 94 INTL J. GYN. & OBST. 352 (2006); D. Breaken et al, Access to Sexual and Reproductive Health Care: Adolescents and Young People, 98 INTL J. GYN. & OBST. (2007), at 172-74.

44.L. HESSBURG ET AL, PROTECTING THE NEXT GENERATION IN GHANA: NEW EVIDENCE ON ADOLESCENTS SEXUAL AND REPRODUCTIVE HEALTH NEEDS 25 (2007).

45.Id.

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significant increase in knowledge, this has not translated into better sexual behaviour or increase in contraceptive use.46

Furthermore, in some situations it has been found that healthcare providers often lack adequate knowledge and skills with regard to contraceptive services. For instance, a study among healthcare providers in Nigeria indicated that a considerable number of those surveyed, exhibited lack of adequate knowledge with regard to EC.47 The implication of this is that health care providers are unlikely to give advice or prescribe such contraception to adolescents. Sometimes health care providers are faced with the ethical issue of whether to seek parental consent before providing sexual health services such as services related to contraception to adolescents. This has remained a very controversial issue in many African countries as some parents believe that their responsibility to cater for their children extends to knowing the kind of treatment they seek.

Experience has shown that many health providers are more readily inclined to seek parental consent before providing treatment for adolescents. However, a judicial pronouncement by the English House of Lords would seem to have clarified this contentious ethical issue. The Court held in the Gillick case that a doctor could lawfully give contraceptive advice and treatment to a girl under the age of 16 without parental consent if it was established that she had ‘sufficient maturity and intelligence’ to understand the nature and implications of the proposed treatment sought provided that certain conditions were fulfilled.48

The situations described above capture the nature of sexual and reproductive health challenges facing adolescents in Africa, thus confirming that gaps exist in realizing the health needs of adolescents in the region. This situation calls for a drastic change and requires the commitment of African governments in advancing the sexual health needs of adolescents in the region. One way of doing this is to invoke principles and standards contained in international and regional human rights instruments.

46.D. Kirby et al, An Impact of Evaluation Project SNAPP: An AIDS and Pregnancy Prevention in Middle School Programmes, AIDS EDUC. & PREVENTION SUPP. (2007), atA 44-61.

47.O.M Ebuche et al, Health Care Provider’s Knowledge of Attitudes Towards and Provision of Emergency Contraceptives in Lagos, Nigeria, 32 INTERNATIONAL FAMILY PERSPECTIVES 83 (2006).

48.Gillick v. West Norfolk and Wisbech Health Authority and Department of Health and Social Security [1986] 1 AC 112.

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IV. SPECIFIC HUMAN RIGHTS IN RELATION TO ACCESS TO

CONTRACEPTION FOR ADOLESCENTS

The assertion that children and women are subjects of rights and not merely objects of charity implies that benevolent and charitable actions, while good, are insufficient from a human rights perspective. A rights-based approach is premised on the fact that shared interests exist between rights holders and those working to help realize rights. It accepts that the state is normatively required to work consistently towards ending denials or violations of human rights, and that the empowerment of rights holders is in itself an important result of various processes. This is particularly true as in the case of access to contraception for adolescents in Africa. Several international and regional human rights instruments contain important fundamental rights that impose obligations on African governments to ensure access to information and services related to contraception for adolescents in the region. Some of these rights are considered here together with the clarifications provided by treaty monitoring bodies. In addition, some consensus documents relating to the sexual and reproductive needs of adolescents are discussed.

A. The Right to Health

The right to health is one of the most important rights that can be invoked to ensure access to contraception for adolescents. According to the WHO, health is broadly defined as a state of complete physical, social and mental well being and not merely absence of disease or infirmity.49 It is further stated that the enjoyment of the right to health is a fundamental right of all. Though criticized for being too aspirational and utopian in nature,50 this definition has provided a solid foundation for the recognition of the right to health in subsequent human rights documents that emerged after the WHO Constitution. For instance, Article 25(1) of the Universal Declaration of Human Rights (UDHR)51 provides that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.’ Perhaps the most

49.The Constitution of the WHO was adopted by the International Health Conference, New York, 19-22 June 1945, opened for signature on 22 July 1946 by the representatives of 61 states. See, 14 UNTS 185.

50.See e.g., T. Evans, A Human Right to Health? 23 THIRD WORLD Q. 198 (2002) (arguing that if the definition of health as provided by WHO in its Constitution is taken at a face value, then we may end up in an absurd claim to eliminate disease, infirmities brought by aging and even mortality).

51.GA Res 217 A (III), UN Doc A/810 (10 December 1948).

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comprehensive recognition of this right is contained in Article 12 of the international Covenant on Economic, Social and Cultural Rights (ICESCR)52 where it is provided that ‘States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ Article 12(2) further contains among others, important determinants of the right to health such as prevention and treatment of diseases, essential for the enjoyment of the right.

It should be noted that the right to health as contained in these instruments does not by any means guarantee perfect health for all.53 It is not in contention, however, that this right encompasses an obligation on a state to ensure access to preventative health services for all.54 In other words, states are legally obligated to ensure access to preventive health services, such as access to contraception, for adolescents. The Committee on ESCR in its General Comment 14, while clarifying the content of the right to health, has urged states to provide access to comprehensive sexual and reproductive health care services (including access to contraception) for adolescents.55 This is no doubt an implicit recognition of the fact that adolescents should be assured unimpeded access to contraceptive information and services.

With specific regard to the health of adolescents, Article 24 of the Convention on the Rights of the Child (CRC)56 recognizes the right of children to the enjoyment of highest attainable standard of health. Article 24(f) further enjoins states to develop preventive health care guidance for parents and family planning services. A careful look at this provision does not seem to explicitly refer to adolescents. Packer observes that this provision is worded in such a way as to give room for ambiguity.57 According to her, the provision is capable of two possible interpretations. It could mean ensuring access to family planning services for the parents of an adolescent. Alternatively, it could imply ensuring access to family planning services for an adolescent in order to prevent unwanted pregnancies. The latter interpretation is more plausible. Clearly, the

52.Adopted 16 December 1966; GA Res 2200 (XXI), UN Doc A/6316 (1966) 993 U.N.T.S 3 (entered into force 3 January 1976).

53.B.C. TOEBES, THE RIGHT TO HEALTH UNDER INTERNATIONAL HUMAN RIGHTS LAW 19

(1999).

54.CRLP & CLF, supra note 12, at 40.

55.UN Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, General Comment 14, UN Doc. E/C/12/2000/4 para 23.

56.Adopted in 1989, U.N. Doc. A/44/49, entered into force 2 September 1990.

57.See, C.A. PACKER, THE RIGHT TO REPRODUCTIVE CHOICES 85 (1996); and D. Fottrel, One Step Forward or Two Steps Sideways? Assessing the First Decade of the Children’s Convention on the Rights of the Child, in REALIZING CHILDRENS RIGHTS: 10 YEARS OF THE CONVENTION ON THE RIGHTS OF THE CHILD (D. Fottrel ed., 2000), at 4 (castigating the drafting style of the Convention as being broadly

framed to the extent that their meanings are ambiguous and/or they fail to improve on existing standards).

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intention of the drafters of this article could have been made more explicit to avoid this unnecessary ambiguity.58 The poor use of language here is a reflection of opposition to sexual health education and services for adolescents. Based on this, Packer submits that this provision neither includes nor excludes adolescents from preventive health care services.59

However, in its General Comment 4, the Committee of the CRC has urged states to develop and implement programmes that ensure provision of sexual and reproductive health services, including access to contraception, for adolescents.60 The Committee further imposes obligations on states to ensure that health facilities, goods and services (including contraception) are of good quality and are sensitive to the specific needs of adolescents.61 Also, in one of its Concluding Observations to Belize, the Committee has noted with great concern the high teenage pregnancies existing in the country and therefore urged the government of Belize to ensure comprehensive and appropriate access to sexual and reproductive health care services for all adolescents in the country.62 A health care service that is sensitive to the needs of adolescents must no doubt respect their autonomous decision-making powers to seek preventive treatment such as contraception.

Furthermore, the right to health has been guaranteed under Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),63 which provides that states shall take all necessary measures to eliminate discrimination against women in the field of health care in order to ensure access to treatment for women on equal basis with men. This provision is very important in ensuring access to contraception for female adolescents and improving their health. As shown above, lack of access to contraception can compromise the health of adolescents. In addition to this provision, Article 16 guarantees the right to family planning services for all women. Also, Article 14 specifically guarantees access to family planning

58.See, S. Toope, The Convention on the Rights of the Child: Implications for Canada, in M. CHILDRENS RIGHTS: A COMPARATIVE PERSPECTIVE 33 (Freeman ed., 1996), at 43 (where the provisions of the Convention have been criticized for being ‘loosely, if not sloppily’ drafted). See also, D. Gomien,

Whose Rights (and whose duty) Is it? An analysis of the Substance and Implementation of the Convention on the Rights of the Child, 7 N. Y. L. SCH. J. HUM. RTS 162 (1989).

59.PACKER, supra note 57, at 85.

60.Committee on the Rights of the Child, Adolescent Health and Development in the Context of the Convention on the Rights of the Child, General Comment No. 4, CRC/GC/2003/4 Thirty-Second Session, May 2003, ¶ 31.

61.Id., ¶ 39(c).

62.Committee on CRC Concluding Observations: Belize UN Doc CRC/C/146 2005, ¶ 347.

63.Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 54/180 UN GAOR 34th Session Supp. No 46, UN Doc A/34/46 1980.

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services for women in rural areas. These provisions of CEDAW are one of the most explicit and perhaps broadest recognitions of the general right to family planning treatment (including access to contraception), for women especially female adolescents.64

In its clarification of the content of CEDAW, the CEDAW Committee has observed that its provisions guarantee access to health care services, including services on contraception and STIs prevention to adolescents.65 In what appears to be an affirmation of the sexual autonomy of adolescents, the Committee in its General Recommendation 24 has urged states parties to ensure access to sexual and reproductive health care services, without prejudice for all women and girls.66

At the regional level, the right to health is guaranteed in the major human rights instruments under the African human rights system. For instance, Article 16 of the African Charter on Human and Peoples’ Rights (African Charter)67 provides that every individual shall have the right to the best attainable state of physical and mental health. This provision is broad enough and would seem to encompass access to sexual health services including contraception. Indeed, in the Purohit case the African Commission on Human and Peoples’ Rights (African Commission) has held that ‘Enjoyment of the human right to health as it is widely known is vital to all aspects of a person's life and well-being, and is crucial to the realization of all the other fundamental human rights and freedoms.’68 It states further that this right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind. In a similar vein, Article 14 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter)69 provides that every child shall be entitled to the best attainable standard of physical and spiritual health. It further guarantees the right to preventive health care services for children.

The Protocol to the African Charter on the Rights of Women (Women’s Protocol),70 the most recent of the human rights instruments in the region, contains, in

64.CRLP & CLF, supra note 12, at 40.

65.General Recommendation 24 of CEDAW on Women and Health, UN GAOR, 1999, Doc A/54/38 Rev 1.

66.Id., para 21.

67.OAU Doc CAB/LEG/67/3/Rev 5, adopted by the Organization of African Unity, 27 June 1981, entered into force 21 October 1986.

68.Purohit & Moore v. The Gambia, Communication 241/2001 decided at the 33rd Ordinary Session of the African Commission held from 15th – 29th in Niamey, Niger, May 2003.

69.OAU Doc. CAB/LEG/24.0/49 (1990), entered into force Nov. 29, 1999.

70.Adopted by the 2nd Ordinary Session of the African Union General Assembly in 2003 in Maputo, CAB/LEG/66.6 (2003), entered into force 25 November, 2005.

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its Article 14, elaborate and explicit provisions recognizing the right to health, including sexual and reproductive health of women. This important article further provides that states should respect and promote a woman’s right to control her fertility, decide the number and spacing of her children, choose any method of contraception, self- protection from sexually transmitted infections including HIV/AIDS, legal abortion in certain situations and family planning.

Also, the provision enjoins states parties to take appropriate measures to ‘provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.’ By these unique and radical provisions, the Women’s Protocol has become a pace-setter under international human rights law, as the first human rights instrument that clearly recognizes women’s sexual and reproductive health as human rights and contains specific provisions on women’s protection in the context of HIV/AIDS and access to contraception.71 Banda submits that by these provisions, the Women’s Protocol has blazed the trail in terms of explicit recognition of sexual and reproductive rights of women.72 It should be noted that the Women’s Protocol applies to all women including girls. Therefore, it becomes one of the strongest human rights instruments that can be invoked to support female adolescents’ right to access contraceptive information and services. It clearly accords female adolescents the autonomy with regard to their sexual health needs.

In addition to the above mentioned human rights instruments, there are various non-binding consensus statements and resolutions useful in realizing access to contraceptive services for adolescents. For instance, at the ICPD it was agreed that states should ensure adolescents’ access to health care services so as to prevent unwanted pregnancies and STIs.73 At the five-year review of the ICPD, it was further reiterated that states should guarantee adolescents’ access to sexual and reproductive health care services.74 At Beijing, states reaffirmed the right to the enjoyment of the highest attainable standard of health for women, including the promotion and protection of the health of girls. At the follow-up meeting to the Millennium Development Goals

71.See, Center for Reproductive Rights (CRR), Protocol on the Rights of Women in Africa: An Instrument for Advancing Reproductive and Sexual Rights (Briefing Paper, 2005), at 4-7. See also, E. Durojaye, Advancing Gender Equity in Access to HIV Treatment Through the Protocol on the Rights of Women in Africa, 6 AFR. HUM. RTS L. J. (2006).

72.See, F. Banda, Blazing a Trail: The African Protocol on Women’s Rights Comes into Force, 50 J. AFR. L. 81 (2006); C.M. Danwood, Reclaiming (Wo)manity: The Merits and Demerits of the African Protocol on Women’s Rights, 53 NETHERLANDS INTL L. REV. (2006).

73.ICPD, supra note 1, ¶ 7.41.

74.ICPD+5 Key Actions, supra note 11.

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(MDGs) in 2005, it was reiterated that to achieve the health- related targets of the MDGs, it would be necessary to ensure universal access to sexual and reproductive health care services for all by the year 2015.75 This will surely include access to information and services related to contraception.

The Maputo Plan of Action, which was the brain child of African ministers of health, has recognized that facilitating access to sexual health services including contraceptive services for adolescents is imperative for attaining universal access to sexual and reproductive health services in the region.76 It particularly urges African governments to implement policies and measures that support provision of sexual and reproductive health care services (including those related to contraception) addressing the needs of adolescents in the region. Undoubtedly, such policies and measures must recognize the autonomous decision- making capability of adolescents to seek sexual health services

B. The Right to Information and Education on Sexual Health

The right to freedom of information is a well recognized right under international law. For example, Article 19 of the Covenant on Civil and Political Rights77 guarantees the right to information of all. More specifically, in relation to sexual health information, Articles 10(h) and 16.1(e) of CEDAW recognize the rights of women to access to information related to family planning generally, including those in rural areas. These provisions are broad enough as to include access to contraceptive information to adolescents, especially female adolescents.

Adolescents require accurate information with regard to their sexual health, including information related to contraception; otherwise they may take decisions which could be injurious to their health and lives.78 Indeed, the Committee on CEDAW has urged states to provide without prejudice, access to information and education on sexual health information (including those related to contraception) to girls within their

75.See, The Draft Resolution of the High-Level Plenary Meeting of the General Assembly on the World Summit, 15 September 2005, ¶ 57(g).

76.Maputo Plan of Action for the Operationalization of the Continental Policy Framework for Sexual and Reproductive Health and Rights 2007–2010 (Special session at the African Union Conference of Ministers of Health on the Universal Access to Comprehensive Sexual and Reproductive Health Services in Africa, September 2006), Sp/MIN/CAMH.

77.G.A. Res. 2200, U.N GAOR, Supp. NO. 16 at 52, U.N DOC. A/6316 (1966), 999 U.N.T.S. 171, 174 (entered into force on March 23, 1976) (hereinafter ICCPR).

78.See, CRR, supra note 71, at 4.

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countries.79 The Committee further explains that access to sexual health information and education forms an integral part of the enjoyment of the right to health. According to the Committee, states are obligated to ‘ensure the rights of female and male adolescents to sexual and reproductive health education by properly trained personnel in specially designed programs that respect their rights to privacy and confidentiality’.80 Similarly, the Committee in its General Recommendation 21 has noted as follows:

In order to make an informed decision about safe and reliable contraception measures, women must have information about contraceptive measures and their use, and guaranteed access to sex education and family planning services as provided in article 10(h) of the Convention.81

In relation to children and adolescents, Article 13(1) of the CRC specifically guarantees to young people, the right to ‘seek, receive and impart information and ideas of all kinds’. This provision is broad enough to accommodate information related to contraception for adolescents. Under Article 13(2)(b) it is further provided that the right of a child to seek, receive and impart information may be limited for the sake of public health or morals. This provision easily provides a fertile ground for opposition to adolescents’ access to sexual health information, including access to contraceptive information. This can be particularly true for many African countries, as shown above, where deep religious and cultural norms on sexuality forbid premarital sex for young people. Adherents of these norms may rely on the provision of Article 13(2)(b) to justify their opposition to access to sex education or information on contraception for female adolescents in their countries.

But such an interpretation should not be permitted as it would be inconsistent with the spirit of the CRC, which is aimed at ensuring children’s and adolescents’ physical and mental well being. Freeman argues that if states were to take children’s rights seriously, then all actions taken with regard to them must be for their interests and not to their detriment.82 Thus, this provision deserves a purposive interpretation which must be to the benefit of children and adolescents. Indeed, the Committee on

79.See General Recommendation 24 of CEDAW, supra note 65, ¶ 18.

80.Id.

81.Committee on CEDAW, General Recommendation 21 on Equality in Marriage and Family Relations, Thirteenth Session, General Assembly Report Supp. No. 38 (A/49/38) paras 1-10.

82.M. Freeman, The Limits of Children’s Rights, in THE IDEOLOGIES OF CHILDRENS RIGHTS

29 (M. Freeman & P. Veerman eds., 1992), at 38.

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CRC in its General Comments 383 and 484 has urged states to guarantee access to sexual health information and education (including those related to contraception) for adolescents. According to the Committee, states parties to the Convention should refrain ‘from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information.’85 The Committee further notes that this will be consistent with realizing the right to the highest attainable standard of physical and mental health and the right to life, survival and development for adolescents.86 Similarly, the Committee has noted, in its General Comment 4 as follows:

Adolescents have the right to access adequate information essential for their health and development and for their ability to participate meaningfully in society. It is the obligation of States parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practise healthy behaviours.87

Furthermore, in its General Comment 1 on the Aims of Education, the Committee has adopted a holistic approach to education so as to encompass certain life skills needed by children to develop a healthy lifestyle, good social relationships and responsibility, which are crucial to their pursuits of life options.88 Also, Article 24 of the CRC dealing with the right to health of children can be invoked to ensure access to contraceptive education and information for adolescents.

The Committee on ESCR, in its General Comments 14 on the right to health and 13 on the right to education, provides a good basis for ensuring access to contraceptive information for adolescents. For example, in its General Comment 14 the Committee notes that the enjoyment of the right to health can only be realized if access to health- related information, including sexual health information, is guaranteed.89

83.Committee on the Right of the Child, HIV/AIDS and the Right of the Child, General Comment No. 3, CRC/GC/2003/3 Thirty-Second Session 2003, ¶ 15.

84.General Comment 4 of CRC, supra note 60, ¶ 28.

85.General Comment 3 of CRC, supra note 83, ¶ 16.

86.Id.

87.General Comment 4, supra note 60, ¶ 26.

88.Committee on CRC, The Aims of Education, General Comment 1, CRC/GC/2001/1 April

2001, ¶ 9.

89.General Comment 14, supra note 55, ¶ 23.

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Also, in its General Comment 13 on the right to education, the Committee reasons that education must be provided for all and must adapt to the changing societies. This can be interpreted to imply ensuring access to health education needed for the development of adolescents.90 Indeed, the Committee in some of its Concluding Observations has interpreted the provision on the right to education to also include sexual health education.91 Similarly, the Committee has linked lack of sexual health education to high incidence of unwanted pregnancies and abortions.92

As noted earlier, the right to freedom of information is explicitly guaranteed under Article 19 of the ICCPR. Although this provision is generally worded, it has been interpreted by the Human Rights Committee to request governments to provide sexual health, including contraceptive education, to their citizens.93 Coliver has explained that women need basic information about their reproductive physiology including the ways diseases can be transmitted sexually, the ways risk of transmission can be minimized, the benefits and risks of various methods of contraception, and safe options to adopt when those methods fail.94 She notes further that without information, an individual is unable to make crucial decisions with regard to matters concerning his/her reproductive health, thus resulting in violation of an individual’s rights to liberty and dignity.95

Under the African Children’s Charter, Article 14(f) enjoins states to take measures to realize the right to health of children by developing preventive health care and family life education and provision of services. No doubt this provision is an improvement on the ambiguous provision of Article 24 of the CRC. It clearly obligates states to ensure that information and education in relation to sexual health is made available to children and adolescents. Also, under Article 11 of the Charter the right to education for children is guaranteed. This can similarly be relied on to facilitate

90.See, C.A. Packer, Preventing Adolescent Pregnancy: The Protection Offered by International Human Rights Law, in 5 INTL J. CHILD. RTS (1997), at 65.

91.See e.g., Concluding Observations of the Committee on Economic, Social and Cultural Rights: Cameroon, 41st-43rd mtgs., para. 45, U.N. Doc.E/C.12/1/Add.40 (1999) (hereinafter Concluding Observation CESCR: Cameroon).

92.CRLP & CLF, supra note 12.

93.For example, in one of its Concluding Observations to Poland, the Committee asked the state party to ‘introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education at public schools.’ Concluding Observations of the Human Rights Committee: Poland, 66th Sess., 1764-1765th mtgs., para. 11, U.N. Doc. CCPR/C/79/Add.110 (1999) (hereinafter Concluding Observations HRC: Poland).

94.See, S. Coliver, The Right to Information Necessary for Reproductive Health and Choice under International Law, 44 AM. UNIV. L. REV. (1995).

95.Id., at 1288.

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access to information on sexual health to adolescents. Thus, it has been argued that the Charter’s holistic view and approach to rights to health and education of children easily provides a platform for ensuring access to sexual health information, including information related to contraception for adolescents.96

In a similar version as the ICCPR, the African Charter in its Article 9 equally provides for the right to information for all. This, as earlier stated, can be broadly interpreted to apply to providing sexual health information, especially information related to contraception for adolescents. The Women’s Protocol in Article 12(2) enjoins states to promote literacy among women. This, no doubt, will include sexual health education including education related to contraception. Since a strong correlation exists between girls’ access to education and literacy and capacity to protect themselves from sexual ill-health,97 this provision will ultimately be useful in advancing the sexual and reproductive health of adolescents in the region. Specifically, Article 14(f) of the Protocol requires states to provide family planning education for all women, including young women. This explicit provision for family planning education readily provides a strong justification to compel states to make available to all women, including adolescent girls, sexual health information and education, particularly information related to contraception.

The right to information and freedom of expression over the years has evolved as to impose concrete and immediate obligation on states to provide access to information and to refrain from interfering with the communication of information that is essential for the promotion and protection of sexual health and choices.98 Clarifying the nature of this right, the European Court of Human Rights in Open Door Counseling & Dublin Well Woman Centre v. Ireland99 has held that any attempt by a state to hinder access to sexual health information will amount to a violation of the right to information under international law. While recognizing the fact that this right is not absolute, the court further held that any restriction on this right must be justifiable at law. In the same manner, the African Commission on Human and Peoples’ Rights has held that the freedom of expression is a basic right that is essential to an individual’s personal development.100 Coliver argues that the obligation created by this right is both positive and negative. That is, governments are duty-bound to provide information related to

96.CRLP & CLF, supra note 12, at 42.

97.R.J. COOK ET AL, REPRODUCTIVE HEALTH AND HUMAN RIGHTS: INTEGRATING MEDICINE, ETHICS AND LAW 211 (2003); Center for Reproductive Rights, supra note 71.

98.See, Durojaye & Muchiri, supra note 40.

99.Eur. Ct. H.R. (ser. A) (1992) 246.

100.See, Constitutional Rights Project and Others v. Nigeria (2000) AHRLR 227 (ACHPR

1999).

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sexual and reproductive health for their citizens and at the same time governments must not hinder access to this form of information.101

In addition to the provisions of these binding human rights instruments, there are also consensus statements and resolutions supporting the need for sexual health information for adolescents. For instance, at the ICPD it was agreed that sexual health information should be made available to adolescents so as to help them understand their sexuality and protect them from incidences of sexually transmitted infections and unwanted pregnancies.102 Similarly at Beijing, governments of the world recognized the peculiar vulnerability of adolescents to sexual and reproductive ill-health; therefore, states were urged to provide them with access to comprehensive information and education with regard to their sexuality and health needs.103 Although specific reference to contraception was not made, nonetheless, it is argued that the reference to sexual health education necessarily includes contraceptive education.

At the regional level, the Maputo Plan of Action agreed to by African health ministers in Maputo in 2006, emphasized the importance of creating an enabling environment for women and adolescents and empowering them so as to safeguard their sexual and reproductive health.104 This will obviously include guaranteeing access to health related information, particularly contraceptive information, which will help adolescents protect themselves from STIs including HIV/AIDS. A state may be in violation of the right to health if it distorts health-related information or prevents access to such information among its people.

C. The Right to Life

Lack of access to sexual health services, especially contraceptive services for adolescents can lead to deleterious consequences. As shown above, inaccessibility to comprehensive information and services on sexual health including information and services related to contraception may endanger the lives of adolescents. It is no longer contestable that issues of sexual and reproductive health are matters of life and death.105

101.Coliver, supra note 94, at 1293.

102.ICPD, supra note 1, ¶ 7.41.

103.UN, supra note 10, ¶ 106(2) (m).

104.Special Session: The African Union Conference of Ministers of Health, Universal Access to Comprehensive Sexual and Reproductive Health Services in Africa: Maputo Plan of Action for the Operationalization of the Continental Policy Framework for Sexual and Reproductive Health and Rights, 2007-2010, Sp/MIN/CAMH/5(1), September 2006.

105.See, A. Glasier et al, Sexual and Reproductive Health: A Matter of Life and Death, 368

LANCE (2006).

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Indeed, it is now settled at international law that a denial of health care services will impugn on the right to life of an individual.106 The right to life is adequately guaranteed in virtually all international and regional human rights instruments. The UDHR in its Article 3 guarantees the right to life of all. Similarly, the ICCPR in its Article 6 provides for the right to life.

The Human Rights Committee monitoring states’ compliance under the ICCPR in its General Comment 6 on the right to life has explained that the right to life should be broadly understood as to intersect with health issues such as maternal mortality and treatment and prevention of diseases.107 In the Committee’s view, the right to life is not only the most fundamental of all human rights but it is also non-derogable. The Committee has equally noted in one of its Concluding Observations that lack of access to reproductive health care services including services related to contraception for women is a violation of their right to life.108 In particular the Committee has consistently expressed grave concern over high rates of maternal mortality, framing it as a violation of women’s right to life 109

In the same manner, the Committee on CESCR in its General Comment 14 has explained that the violation of the right to health can interfere with the enjoyment of other rights such as life, dignity, liberty and non-discrimination. Cook et al have observed that an effective protection of the right to life and survival will necessarily require a state to take adequate measures in order to ensure that appropriate health care services (including access to contraception) are provided to women and adolescent girls.110

Yamin has similarly hinted that non-provision of life-saving medications and other health facilities to people in need would result in the violation of the right to life.111 These interpretations would seem to impose positive obligations on states to avoid unnecessary loss of lives. They coincide with the decisions of international

106.See, General Comment 14, supra note 55; see in particular, Pachim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37 (where a denial of emergency medical treatment has been held to be in violation of the right to life).

107.UN GAOR Human Rights Committee 37th session Supp. No. 40.

108.See, Human Rights Committee Concluding Observation: Chile 30/3/99 UN Doc CCPR/79/Ad. 104, 15.

109.See, e.g, Human Rights Committee Concluding Observations: Bolivia 01/04/97 UN Doc CCPR/79/Ad. 74, 22; Concluding Observation: Guatemala 27/08/2001 UN Doc CCPR/CO/72GTM, 19.

110.Cook et al, supra note 97, at 162.

111.A.E. Yamin, Not Just a Tragedy: Access to Medication as a Right under International Law, 21 BOSTON UNIV. INTL L. J. 334 (2003). See also, V. Leary, The Right to Health in International Human Rights Law, 1 HEALTH & HUM. RTS 27 (1994).

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tribunals such as the European Commission on Human Rights. In Tavares v. France,112 for example, the Commission has held that the right to life guaranteed under the European Convention extends beyond a state’s duty to abstain from intentional killing but also includes taking necessary steps to protect unintentional loss of life.

In a region where adolescents bear the greatest burden of STIs, unwanted pregnancies, incidences of unsafe abortions and deaths resulting from early pregnancies, all due to lack of access to contraception, it will amount to an understatement to say that adolescents’ lives are threatened. Evidence abounds to show that each year millions of young women die due to sexual and reproductive ill health.113 The sad aspect of these deaths is that most of them are avoidable. Where an adolescent cannot get access to the treatment or means of treatment he/she needs most, death is likely to be the necessary consequence.

More importantly, with respect to contraceptive services, inability of a state to ensure confidential services to adolescent patients may not only hinder access to sexual health treatment to adolescents, but may also make them forego such treatments. The likely consequences of this will be risk of pregnancy, STIs, including HIV, and perhaps resort to unsafe abortion. Indeed, it is a well known fact that each year tens of thousands of young women lose their lives or suffer from morbidity due to lack of confidential sexual health treatment.114 Comprehensive access to contraceptive information and services can avoid some of these deaths or morbidities.

Under the CRC, the right to life, survival and development of a child is guaranteed in Article 6. The Committee on CRC has observed that the obligation of states to realize the right to life of adolescents include paying attention to their sexuality and eliminating all conditions that may be injurious to their health needs.115 Also, in order to ensure the health and survival of adolescents, it is imperative that they must be assured access to comprehensive sexual health care, including contraceptive services, peculiar to their needs. In this regard, the Committee has noted that ‘effective prevention programmes are only those that acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills and to preventive measures.’116

112.App. No. 16593/90 Euro. Comm. HR.

113.See, e.g., Glasier et al, supra note 105.

114.R.J. Cook & B. Dickens, Recognizing Adolescents’ Evolving Capacities to Exercise Choice in Reproductive Healthcare, 70 INTL J. GYN. & OBST. 17 (2000).

115.Committee on CRC General Comment 3, supra note 83, ¶ 11.

116.Id.

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At the regional level, the right to life of all individuals including children and adolescents is explicitly guaranteed under Article 4 of the African Charter. Article 4 provides that every human being shall be entitled to the respect for his/her life and the integrity of his/her person. Whereas Article 5 of the African Children’s Charter declares that: ‘Every child has an inherent right to life. This right shall be protected by law.’ In a language similar to that of the African Charter, the Women’s Protocol in its Article 4 equally guarantees the right to life and security of all women. The African Commission has affirmed the interrelatedness of all human rights when it found in the SERAC case that the Nigerian government was in violation of the rights to health, life, clean environment and so on due to pollution caused by the activities of multi-national oil companies in Ogoniland.117 This decision can be interpreted to mean that non- provision of health care services and facilities, including contraception to adolescents, will impair their enjoyment of their right to life.

D. The Right to Non-discrimination

The concept of non-discrimination implies that an individual should not be treated differently from others in an adverse manner. The right to non-discrimination is protected in virtually all human rights instruments. With regard to adolescents, discrimination may arise where laws and polices bar access to information and services in relation to their sexuality, simply based on their age. More specifically, it can amount to discrimination if access to information and services on contraception are deliberately denied to female adolescents or adolescents in rural areas due to religious or cultural reasons. Articles 2 of both the ICCPR and the ICESCR provide that everyone is equal before the law and that no one should be subjected to discrimination based on sex, race, religion, political belief or other status.

Explaining the importance of Article 2 of the ICCPR, the Human Rights Committee118 has noted that ‘Non discrimination together with equality before the law and equal protection of the law without discrimination constitutes a basic and general principle relating to the protection of human rights’. Similarly, the Committee in some of its Concluding Observations has noted that lack of access to contraception to women

117.See, Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria (2001) AHRLR 60 (ACHPR 2001).

118.General Comments of the Human Rights Committee on the Non-Discrimination Clauses of the ICCPR (adopted on 9 November 1989). See also, J. Möller, Article 7, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY 115 (A. Eide et al eds, 1992).

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amounts to discrimination.119 The CEDAW in its Article 2 urges states to take measures to eliminate all forms of discrimination against women. Article 12 specifically provides for access to health care services to women on equal basis with men. This provision no doubt can be invoked to ensure access to contraceptive information and services for female adolescents.

Indeed, as mentioned earlier, the Committee on CEDAW has interpreted this provision to apply to the needs of girls.120 The Committee has urged states to eliminate discrimination in health care services to women and girls in their country. In the same manner, the Committee on CESCR has noted that access to health care services, including sexual and reproductive health services, should be guaranteed to all without discrimination as to sex or age.121 These clarifications would seem to cover elimination of discrimination to female adolescents seeking contraceptive information and services.

Virtually all the above mentioned instruments proscribe discrimination on prohibited grounds that may impair an individual’s rights to enjoy the fundamental rights guaranteed under these instruments. The term ‘other status’ contained in almost all of these instruments has been explained to include age, economic or marital status.122 One of the core principles underlining the CRC is non-discrimination. This principle is guaranteed under Article 2 of the CRC which forbids discrimination against children. A purposive interpretation of the CRC would suggest a proscription of discriminatory practices against adolescent girls with regard to access to health care services, including contraceptive services. But the provisions of the CRC have been criticized for failing to contextualize the challenges encountered by female children and adolescent girls in their daily lives. Fottrel for instance, has argued that the provisions of the CRC are essentially drafted to soothe the needs of white male children and are insensitive to the disadvantages and challenges encountered daily by female children in developing regions such as Africa.123 This is because the CRC does not explicitly address issues such as harmful traditional practices like female genital cutting/mutilation (FGC/FGM) nor does it deal with early marriage prevalent in most parts of Africa. Moreover, the CRC fails to specify measures that should be taken by

119.See, e.g., Concluding Observations of the Human Rights Committee: Georgia, 1564-1566th mtgs., para. 12, U.N. Doc. CCPR/C/79/Add.75 (1997); Concluding Observation HRC: Poland, supra note 93, ¶ 11; Concluding Observations of the Human Rights Committee: Argentina, 17th Sess., 1883rd-1884st mtgs., para. 14, U.N. Doc. CCPR/CO/70/ARG (2000).

120.General Recommendation 24 of CEDAW, supra note 65, para 18.

121.General Comment 14 of Committee on ESCR, supra note 55.

122.See, e.g., Committee on ESCR in its General Comment 20 on Non-Discrimination in Economic, Social and Cultural Rights, E/C.12/GC/20 25 May 2009; CRLP & CLF, supra note 12, at 46.

123.Fottrel, supra note 57, at 10.

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states to address the needs of girls in many developing countries. She argues further:

The main protection offered girls is found in article 2, which guarantees equality and non-discrimination, but the reality of many girls’ lives is beyond the scope of such declaratory provisions and this must be viewed as an oversight by the drafters. Paper equality cannot be considered cure-all for the effects of centuries of discrimination.124

While this argument would seem valid and not to be taken lightly, it should, however, be noted that the Committee on CRC has tried as much as possible to give attention to gender issues in its interpretations of the provisions of the Convention. For instance, the Committee has explained that discrimination against girl children often leads to denial of access to sexuality information and services to them. It further expresses concern about gender-based discrimination combined with taboos or judgmental attitudes to sexual activities of girls, which potentially limit access to information and preventive health care services such as contraception to them. States are therefore, urged to take adequate measures with a view to eliminating gender-based discrimination which makes the girl child more vulnerable to STIs and HIV infection.125

Under the African human rights system, Article 3 of the African Children’s Charter proscribes discrimination against every child irrespective of the child’s or his/her parents’ race, religion, sex, ethnic group, language, birth and other status. Equally, Article 2 of the Women’s Protocol specifically calls for states to eliminate all forms of discrimination against women in the region. The Protocol broadly defines discrimination in the following way:

Any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their mental status, of human rights and fundamental freedoms in all spheres of life.126

Additionally, Article 5 of the Protocol urges states to take adequate steps and measures to eliminate harmful traditional practices which entrench discrimination against women and girls in the region. Article 3 of the African Children’s Charter is not different from

124.Id.

125.Committee on CRC General Comment 3, supra note 83, ¶¶ 7 & 8.

126.Article 1 of the Women’s Protocol, supra note 70.

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Article 2 of the CRC. Therefore, the criticism referred to above with regard to the gender insensitivity of the CRC equally applies to the African Children’s Charter. Given the fact that the African Children’s Charter came after the CRC, and bearing in mind the peculiar challenges faced by adolescent girls in Africa, one would have thought that the drafters would avoid the mistakes of the CRC and give more attention to the needs of adolescent girls in the region.

Unfortunately, this is not the case. The African Children’s Charter is silent on important issues, such as prevalence of child marriages in Africa, which is potentially harmful to the health of girls. However, the Women’s Protocol, unlike the African Children’s Charter, contains broad and radical provisions relating to the sexual and reproductive health needs of women and girls in Africa. For instance, as argued earlier, the Protocol explicitly guarantees women’s sexual and reproductive rights, provides that women should be protected from STIs including HIV/AIDS, recognizes women’s and girls’ rights to seek contraceptive services and forbids marriage of a girl under the age of 18. One may unarguably conclude that the provisions of the Women’s Protocol are by far the most gender-sensitive human rights instrument in the region which is potent in protecting the sexual health needs, including contraceptive needs, of adolescent girls.

The African Charter in its Article 2 provides that every one is equal before the law and that no one should be discriminated against on grounds such as gender, religion, political beliefs or other status. Article 3 similarly guarantees to every individual the right to equality and equal protection of the law. The African Commission on Human and Peoples’ Rights in the case of Legal Resource Foundation v. Zambia127 has explained the relevance of Articles 2 and 3 of the African Charter dealing with non-discrimination and equal protection of the law. According to the Commission:

The right to equality is very important. It means that citizens should be expected to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of all the rights available to all other citizens. The right to equality is important for a second reason. Equality or lack of it affects the capacity of one to enjoy many other rights.

127. (2001) AHRLP 84 (ACHPR 2001), ¶ 63.

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This decision provides a strong basis for arguing that adolescents, particularly adolescent girls, should not be denied access to contraceptive information and services on the grounds of gender, age or marital status. Governments will need to strive to remove all forms of barriers to access to sexual health services for adolescents in their countries.

At both the ICPD and the Beijing conferences, it was agreed that if improvements were to be brought to women’s health, there will be need to address gender inequality across the globe. The Beijing conference particularly recognized that some customary practices are harmful to the health of women and perpetuate discrimination against them.128 Both conferences also resolved that women should enjoy their sexual and reproductive rights without coercion, violence or discrimination.129 One of the targets of the Millennium Development Goals (MDGs) is to address the pervading gender inequality worldwide. In this regard, goal No 3 of the MDGs emphasizes the importance of promoting gender equality and women’s empowerment as an effective pathway to combat poverty, hunger and disease and to stimulate truly sustainable development.130 At the World Summit on Children it was affirmed as follows:

We are determined to eliminate all forms of discrimination against the girl child throughout her life cycle and to provide special attention to her needs in order to promote and protect all her human rights including her right to be free from coercion and from harmful practices and sexual exploitation. We will promote equal access to basic social services such as … health care including sexual and reproductive health care….131

The Solemn Declaration on Gender Equality in Africa132 enjoins African countries to accelerate the implementation of gender specific economic and social programmes so as to prevent the spread of STIs, including HIV/AIDS, among women. In addition states are to ensure ‘the active promotion and protection of all human rights for women

128.UN, supra note 10.

129.Id., ¶ 91 and ICPD, supra note 1, ¶ 7.8.

130.UN Millennium Declaration and Millennium Development Goals, 2000 A/RES/55/2.

131.UN General Assembly Resolution, A World Fit for Children, adopted at the Twenty- Seventh Special Session held on 11 October 2002, AR/RES/S-27/2, ¶ 23.

132.Solemn Declaration on Gender Equality in Africa, adopted at the AU Assembly of Heads of State and Government meeting in Addis Ababa in July 2004.

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and

girls to development…’133 This can be interpreted to

mean addressing

discrimination relating to access to contraceptive information and services for adolescents in the region. Furthermore, at the Grand Bay Declaration and Plan of Action, African governments were urged to work ‘assiduously towards elimination of discrimination against women and the abolition of cultural practices which demean and dehumanize women and children.’134

E. The Right to Autonomy

This right encompasses the right of an individual to determine his or her sexual and reproductive autonomy. Although nowhere is this right specifically guaranteed in any human rights instruments, the right nonetheless is intrinsically linked with other rights such as rights to privacy, security, liberty and dignity. These combinations of rights form the basis of an individual’s rights to make choices with regard to his or her sexuality. They also support the fact that adolescents are entitled to seek confidential contraceptive information and services without the need for parental consent.

As stated earlier, unless the privacy and confidentiality of adolescents is guaranteed, they may avoid seeking necessary help with regard to their sexual health. It must be noted that the right to independent decision-making on the part of adolescents in the context of sexual health services, inextricably intersects with their ability to exercise their right to health and dignity.135 Several provisions of international human rights instruments can be relied on to uphold adolescents’ right to self- determination with regard to their sexual health. For instance, Article 3 of the UDHR, which guarantees the right to liberty of person and Article 9 of the ICCPR relating to the right to liberty, support adolescents’ right to sexual and reproductive self- determination. This necessarily includes the exercise of adolescents’ self-determination in relation to issues such as access to contraceptive information and services.

Indeed, the Human Rights Committee has observed that failure on the part of a government to enact appropriate legislation and ensure access to contraception and sexual health information amounts to a violation of the right to sexual and reproductive self-determination.136 In one of its Concluding Observations to Argentina, the Committee has recommended that the state party take adequate measures and steps with

133.Id., ¶ 6.

134.The first OAU Ministerial Conference on Human Rights held from 12-16 April, 1999, at Grand Bay, Mauritius.

135.Cook & Dickens, supra note 114, at 20.

136.CRLP & CLF, supra note 12.

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a view to enacting laws that will facilitate access to comprehensive family planning services, including contraceptive services, so as to provide women with options.137

Under the CRC there is no clear-cut provision conferring autonomous decision making power on adolescents. Rather, the CRC strives to strike a balance between parental rights and adolescents decision-making power through the twin principles of ‘evolving capacities of the child’ and ‘the best interests of the child.’138 This subtle approach by the CRC can be attributed to the paternalistic view often expressed by most states that children and adolescents are incapable of ‘rational’ decision-making power. Indeed, it has been argued that the provisions which seek to enhance the autonomy of the child under the Convention are one of its weakest.139 However, Article 16 does recognize adolescents’ right to privacy.

In some of its Concluding Observations to states parties to the Convention, the Committee on CRC has affirmed the need to guarantee adolescents’ right to privacy while seeking sexual health information and services. For example, the Committee in its Concluding Observations to Djibouti observed that lack of confidentiality can be a barrier to adolescents’ access to sexual health services.140 The Committee has equally advocated that adolescents’ health care services are assured without the need for parental consent.141 In its General Comment 3, the Committee specifically urges states parties to ensure children’s and adolescents’ right to privacy and confidentiality in the context of HIV/AIDS services.142 Similarly, the Committee in its General Comment 4 has noted that for the health and development of adolescents to be promoted, states are enjoined to respect strictly their confidentiality and privacy, particularly with regard to health related matters.143

In addition to the above, Article 16(1) of CEDAW guarantees a woman’s right to decide freely and responsibly the number and spacing of her children and access to information and the means to do so. This provision would seem to be one of the important provisions affirming an individual’s right to sexual and reproductive health autonomy. Indeed, the Committee on CEDAW in its General Recommendation 24 has emphasized on the need for women and girls to be assured their right to sexual and

137.Concluding Observation: Argentina, supra note 119.

138.CRLP & CLF, supra note 12, at 44.

139.T. Hammerberg, The UN Convention on the Rights of the Child and How to Make it Work,

12 HUM. RTS Q. 100 (1990).

140.See, Concluding Observation of CRC: Djibouti, UN. Doc CRC/C15/Add.131.¶ 46.

141.General Comment 4, supra note 60.

142.General Comment 3, supra note 83, ¶ 24.

143.Id., ¶ 11.

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reproductive self-determination.144 This will also include assuring to adolescent girls self-determination to seek contraceptive information and services. The Committee has similarly, in some of its Concluding Observations to states, called on states to recognise women and girls as autonomous decision-makers by refraining from taking any action that will obstruct their health goals.145 Also, the Committee has pointed out the need to respect the free and informed decision-making of adolescents by constantly recommending to states parties to increase their access to sexual health information and services.146

More importantly, the Committee has interpreted the provision on the right to health of CEDAW as guaranteeing confidential sexual and reproductive health information and services.147 The Committee has called on states parties to ensure, through properly trained personnel, the right of male and female adolescents to sexual health services and information. It equally calls on states to design programmes that will respect adolescents’ privacy and confidentiality in health care services (including contraceptive services).148

Even though the ICESCR contains no provision on the right to privacy, the Committee on CESCR has equally interpreted the right to health guaranteed under the Covenant, to include the freedom of an individual to exercise his or her sexual and reproductive choices and the right to have access to ‘safe, effective, affordable and acceptable methods of family planning of their choice as well as the right of access to appropriate health-care services. . . .”149 The Committee has progressively recognized the right of adolescents to participate in decisions affecting their health care and has emphasized on the need to respect their confidentiality and privacy in sexual and reproductive health services, including contraceptive services.150

144.General Recommendation 24 of CEDAW, supra note 65, ¶ 14.

145.See, e.g., Concluding Observations of the Committee on CEDAW: Belize, 21st Sess., 432nd-433rd, 438th mtgs., paras. 56-57, U.N. Doc.CEDAW/A/54/38, paras. 31-69, (1999); Concluding Observations of the Committee on CEDAW : Greece, 20th Sess., 415-416th mtgs., para. 207, U.N. Doc. A/54/38, paras. 172-212 (1999); Concluding Observations of the Committee on CEDAW: Mauritius, 268th

&271st mtgs., para. 211, U.N. Doc. A/50/38, paras. 160-217 (1995).

146.See, Concluding Observations of the Committee on CEDAW: Indonesia, 377th mtg., para. 284(c), U.N. Doc. A/53/38 (1998); and Concluding Observation s of the Committee on CEDAW: Turkey, 16th Sess., 318-319th mtgs., paras. 184, 196, U.N. Doc. A/52/38/Rev.1, paras. 151-205 (1997).

147.General Recommendation 24 of CEDAW, supra note 65, ¶ 18.

148.Id.

149.General Comment 14 of the Committee on ESCR, supra note 55, ¶ 23

150.Id.

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The American Supreme Court in Casey v. Population Services International,151 while relying on the Fourteenth Amendment of the US Constitution to strike down a legislation which criminalizes the distribution of contraception to adolescents, has held that minors have the fundamental right to choose ‘whether or not to beget a child.’ In another case involving the constitutionality of a legislation proscribing the use of contraception to unmarried persons, the court held that ‘If the right to privacy means anything, it is the right of the individual, married or single, to be free from government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’152 These decisions clearly demonstrate willingness on the part of the courts to uphold adolescents’ autonomous decision-making powers with regard to contraception.

Under the African regional human rights system, the African Children’s Charter guarantees the right to privacy for children in its Article 10. While there is no specific provision on the right to privacy in the African Charter, Article 5 of the Charter does recognize an individual’s right to dignity. Also, Article 3 of the Women’s Protocol guarantees women’s rights to human dignity.

It should be noted that when adolescents are prevented from seeking information and services with regard to their sexual health, particularly access to contraception, their dignity as human beings is impugned. Margalit has explained that dignity, unlike honour, is not a positional good. It is supposed to be accorded to everybody, by virtue of the most universal common denominator of being human.153 Shalev has similarly argued that the right to autonomy in making health decisions, particularly sexual and reproductive health decisions, is founded upon an individual’s fundamental right to liberty.154 All individuals, including adolescents, have the liberty to make choices with respect to their sexual health. That is, one is entitled to the recognition of one’s capacity as a human being to exercise choices in the shaping of one’s life.155

During the ICPD, it was affirmed that all individuals shall have the freedom to decide freely without restriction regarding their sexual and reproductive health needs. More particularly, this consensus statement further made reference to the fact that

151.(1977) 678433 US (SC).

152.Eisentadt v. Bard (1973) 405 US 438.

153.A. MARGALIT, THE ETHICS OF MEMORY 220 (2003).

154.C. Shalev, Rights to Sexual and Reproductive Health: The International Conference on Population and Development and the Convention on the Elimination of All Forms of Discrimination against Women, 4 HEALTH & HUM. RTS 46 (2000).

155.I. Berlin, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY (I. Berlin ed., 1969), at

120-123.

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adolescents needed to be assured of respect for informed consent, confidentiality and privacy so as to address issues of sexual abuse and other sexual and reproductive health matters.156 This position was reiterated at the ICPD+ 5 when governments were called upon to guarantee access to appropriate youth-friendly health care services, including sexual and reproductive health care, for adolescents.157 It was further agreed that such services should respect the confidentiality and privacy of adolescents.

A similar position was taken at Beijing where it was agreed that respect for adolescents’ confidentiality and privacy in health care services is essential in guaranteeing their equality and securing their future.158 At the World Summit for Children, world leaders resolved to take action to protect the rights of children and adolescents by respecting their dignity and securing their well-being.159 These statements confirm the need to assure to adolescents confidential and autonomous contraceptive services.

V. CONCLUSION

This article has shown that adolescents, especially female adolescents in Africa, continue to face threats to their health and lives due to lack of access to contraceptive information and services. Death and morbidities arising from sexual and reproductive ill health among adolescents in the region are preventable if adolescents have access to comprehensive sexual and reproductive heath services. It would appear that African countries are not paying enough attention to the health needs of their adolescents. Much more would need to be done in order to advance the sexual and reproductive health of adolescents in the region. More importantly, African governments must show commitment to the health of the young people by increasing their spending on the health of their population generally and young people in particular.

It would be recalled that at the Abuja Declaration160 African leaders agreed to commit not less than 15 per cent of their annual budgets to the health sector to address challenges posed by HIV/AIDS and other diseases in the region. However, several

156.ICPD, supra note 1, ¶ 7.45.

157.ICPD+5, supra note 11, ¶ 73(a).

158.UN, supra note 10, ¶ 93; Report of the Secretary-General on the Implementation of the Outcome of the Fourth World Conference on Women and of the Special Session of the General Assembly entitled: WOMEN 2000: GENDER EQUALITY, DEVELOPMENT AND PEACE IN THE TWENTY-FIRST CENTURY

(2000), A/55/341, ¶ 79(f).

159.UN General Assembly Resolution, supra note 131, ¶ 4.

160.African Summit on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, Abuja- Nigeria, April 24-27 2001, OAU/SPS/ABUJA/3.

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years after this promise, only few African countries are meeting this target. Africa must realize that if it must meet the health-related targets of the MDGs, then it needs to take more seriously the sexual and reproductive health needs of its adolescents. A step in this direction will be to integrate comprehensive sexual and reproductive health, services including access to contraception into primary health care services. This will be in line with the Maputo Plan of Action as agreed upon by African health ministers. The young people of today are tomorrow’s leaders; therefore African governments need not be reminded that failure to ensure their good health will have serious implications not only for young people but the region as a whole.

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CIVIL SOCIETY PARTICIPATION IN HEALTH SECTOR PLANNING, BUDGETING, AND MONITORING IN SELECTED DISTRICTS IN UGANDA

Sandra Kiapi*

ABSTRACT

This article highlights some of the findings of a survey carried out by Action Group for Health, Human Rights and HIV/AIDS (AGHA) Uganda on health sector transparency, accountability and civil society participation in health sector budgeting and planning in selected districts of Uganda. It examines some components of participation including the right of access to information and the obligation of the state to seek the active and informed participation of the public in decision making. Uganda has embraced a participatory approach to developing plans and budgets for the health sector. However, some components of the right to participation in health-related decision making have not been fully embraced. The Ministry of Health has not taken adequate steps to ensure the active and informed participation of individuals and communities in health-related decisions. Health budgeting and planning is largely seen as a province for health planners and a few selected stakeholders. Moreover, limited information sharing and lack of capacity also undermine the ability of CSOs to meaningfully participate. This is magnified by the uncoordinated representation in planning even where there is an opportunity. These factors have been a major obstacle to meaningful participation.

I. INTRODUCTION

Public participation in decision making is an essential component of a rights-based approach to decision making and may result in a more accountable and transparent public sector. In the context of the right to health, the Committee on Economic, Social and Cultural Rights has reiterated that an important aspect of the right to health is, “the participation of the population in all health-related decision making at the community,

* Former Executive Director, Action Group for Health, Human Rights and HIV/AIDS (AGHA), based in Kampala, Uganda. Email: <[email protected]>

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national and international level.”1 Individuals and communities affected by health policy decisions are entitled to participate in the identification of priorities and targets that guide policy formulation.2 This requires the active and informed participation of individuals and communities in health decisions that affect them with Government taking steps to facilitate effective participation of communities, by ensuring the right to seek and receive health-related information, the right to express views which are respected and the right to basic health education.3 Meaningful participation also requires that special attention be given to the views and needs of the more vulnerable members of society including women, children, the elderly, persons with HIV/AIDS and other groups.4

Transparency within the health sector is a prerequisite for public participation. In the context of health sector planning and budgeting, transparency is defined as the full disclosure of all relevant policy and fiscal planning information in a timely and systematic manner.5 The availability of information means decisions made will be backed by evidence. Civil society organizations (CSOs) in Uganda have a key role to play in monitoring the right to health by participating in health sector planning and budgeting at both the national and district levels. CSOs are important for public participation because in most cases they serve communities and various interest groups such as women, children, and people living with HIV/AIDS, among others. Their role and mandates put them in a unique position as they are often directly in touch with the communities they serve and therefore in position to effectively represent community interests.

The 1995 Constitution of Uganda underscores the importance of the active participation of all citizens at all levels.6 Civil society organizations were involved in the development of the Poverty Eradication Action Plan (PEAP).7 The Ministry of

1.Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health: E/C.12/2000/4, CESCR 11/08/2000 (hereinafter General Comment 14), para. 11.

2.PAUL HUNT, MISSION TO UGANDA: REPORT OF THE SPECIAL RAPPORTEUR ON THE RIGHT OF

EVERYONE TO THE ENJOYMENT OF THE HIGHEST ATTAINABLE STANDARD OF PHYSICAL AND MENTAL

HEALTH, E/CN.4/2006/48/Add.2 at 12.

3.HELEN POTTS, ACCOUNTABILITY AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH 10 (2008).

4.Id.

5.Daisy Owomugasho, Uganda, in BUDGET TRANSPARENCY AND PARTICIPATION: NINE

AFRICAN CASE STUDIES ( 2007), at 282.

6.UGANDA CONST.(1995), art. 176(2)(b), and National Objectives and Directive Principles of

State Policy.

7.GOVERNMENT OF UGANDA, POVERTY ERADICATION ACTION PLAN 6 (2000).

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Health recently took steps to allow civil society organizations to participate in health sector planning, budgeting and monitoring at the national level. In 2005, owing partly to limited public participation in health planning, budgeting and monitoring, some Uganda Government officials mismanaged grant money from the Global Fund to Fight AIDS, Tuberculosis and Malaria (GFTAM).8 Funds for AIDS, TB and malaria programs were misappropriated, creating skeptism from both donors and the international community on Uganda’s ability to manage its grants.9 As a result, the GFTAM required countries to have civil society representation in the Country Coordination Mechanisms (CCM) to participate in planning, but also to act as a watch dog on the use of resources.10

In 2007, the Action Group for Health, Human Rights and HIV/AIDS (AGHA) Uganda, launched a targeted campaign to build the capacity of selected Ugandan CSOs to advocate for government accountability and transparency in the health sector. AGHA and its partners developed a tool with a set of indicators and questions addressed to health planners and CSOs to monitor both the use of health resources and the level of civil society participation in health planning, budgeting, and monitoring at the national and district level. The questions were geared towards exploring the level and effectiveness of participation, as well as the barriers to CSO participation in the health sector in Uganda. The questions explored procedures taken in developing the national plan and district annual work plans, the parties involved in the planning process, the number and type of meetings attended by CSOs, whether CSOs were adequately prepared for meetings and if views were listened to, as well as the availability of health policy documents in lower level facilities, among others.

This article discusses the findings of this data collection process and explains some of the limitations which affect the level of civil society participation in health sector planning, budgeting and monitoring. First, this article gives a background to the survey and lays out the methodology used. Second, it provides a brief overview of the legal and policy framework for CSO participation in health decision making. Third, it explains the findings of the survey. Fourth, it briefly discusses the implications of the findings and finally draws conclusions. The findings reveal that health sector planning process at the national level is a collaborative process including various stakeholders

8.Charles Wendo, Why Global Fund Whip is Cracking Now, THE NEW VISION, November 1, 2008, at 10; C. Natukunda, Who is Responsible for What? THE NEW VISION, November 1, 2008, at 11.

9.Wendo, id.

10.INTERNATIONAL TREATMENT PREPAREDNESS COALITION,MAKING GLOBAL FUND COUNTRY COORDINATING MECHANISMS WORK THROUGH FULL ENGAGEMENT OF CIVIL SOCIETY (Uganda Country Report, 2008), at 53.

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which gives opportunity for CSO participation and allows health priorities and budgets to be influenced. However, the structures for CSO representation at the national level do not allow for democratic representation as there is no democratic process in place for selecting representatives.11

At the district level, although there are structures and policies in place to encourage CSO participation in health sector planning, budgeting and monitoring, the implementation of these policies and structures remains weak. The results suggest a variety of reasons for weak participation including a lack of open and transparent access to information regarding health budgets, resources, and policies, limited capacity of civil society in Uganda, a lack of coordination within civil society, and a lack of trust between CSOs and the political leadership. The Ministry of health and district planners have not taken adequate steps to facilitate effective participation of CSOs by ensuring the right to seek and receive health-related information, and the right to express views which are respected. Unless there is investment in a rights based approach to effective participation, CSO participation in health sector planning, budgeting and monitoring will remain minimal.

II. BACKGROUND

A. About AGHA

The Action Group for Health, Human Rights and HIV/AIDS (AGHA) is a non- governmental organization (NGO) founded in July 2003 to mobilize health professionals and health consumers to address issues of human rights as they relate to health, with a specific focus on HIV/AIDS.12 AGHA brings together doctors, nurses, other health professionals, and NGOs and other institutions interested in promoting the right to health, to create local and national networks dedicated to global health advocacy.

Uganda is one of the poorest countries in the world and has a heavy burden of preventable infectious diseases.13 Malaria constituents 15.4 percent of the total disease

11.The Health Policy Advisory Committee has 2 elected civil society representatives. However, the procedure by which they were voted remains unclear to CSOs that do not belong to their coalitions.

12.For more information, see Action Group for Health, Human Rights and HIV/AIDS (AGHA) Uganda at <www.aghauganda.org>.

13.The Government of Uganda has reaffirmed its commitment to achieving the Millennium Development Goals (MDGs), which show extensive overlap with National Poverty Eradication Action Plan (PEAP). Through the Health Sector Strategic Plan (HSSP) I and II, Uganda has prioritized its

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burden in the country.14 About 100,000 children are HIV infected and 50,000 in need of Anti Retroviral Therapy (ART), but only 26 percent of those in need receive ART.15 As of February 2009, about 160,000 patients had been initiated on ART which represents only 50 percent of those that are eligible for treatment.16 Uganda has a fertility rate of 7.1, one of the highest in the world.17 Neonatal and maternal conditions constitute the highest percentage of the burden of disease in the country at 20.8 percent.18 Greater resources than available are needed to deal with the ever increasing population and high disease burden.

Corruption continues to be a problem in Uganda’s health sector. The scandal over the mismanagement of GFTAM grants combined with less globally publicized but no less critical mismanagement of HIV, TB, and malaria medicines, threaten the health rights of the population. Weak monitoring systems in the government structures and laxity by the civil society and the public to aggressively monitor health sector spending have facilitated mismanagement of health sector funds. As a result, AGHA launched a targeted campaign to promote transparency and accountability in the health sector.

B. The Monitoring Tool

In order to better understand the engagement of civil society in health budgeting and monitoring in Uganda, AGHA developed a set of indicators for monitoring the use of health sector resources and civil society participation in Uganda. These indicators and the resulting data collection instruments were developed through participatory approaches involving other CSOs under the umbrella of Voice for Health Rights (VHR), a coalition of civil society organizations in the health sector. The purpose of the indicators was to assess the current status of accountability, transparency, and participation of civil society in the health sector in Uganda, in order to generate

allocation of the limited resources for health as a commitment to progressively achieving the milestone of 15% of national budget for health by 2010, and the amount per capita that needs to be spent to meet the Uganda National Minimum Health Care Package. See, HSSP II, 2005/6-2009/10 (July 2005), at 1.

14.Id., at 2.

15.Save the Children/Ministry of Gender, Labour and Social Development, Calling for the Realization of the Rights of Orphans and Other Vulnerable Children, THE NEW VISION, Friday November 21, 2008, at 38-39.

16.Ministry of Health, Press Statement on the Cut-off of CD4 Cell Count for Initiating New AIDS Patients on Anti-retroviral Treatment, February 10, 2009.

17.MINISTRY OF HEALTH, ANNUAL HEALTH SECTOR PERFORMANCE REPORT, 2006/2007; GOVERNMENT OF UGANDA, UGANDA DEMOGRAPHIC HEALTH SURVEY (2006).

18.Id.

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information and data that could be used to inform and promote dialogue between health sector leadership and civil society, as well as the advocacy efforts by CSOs. The indicators and the resulting data collection tool focused on five areas of inquiry (i) Planning and financial accountability; (ii) Timeliness in release of funds; (iii) CSO meaningful participation; (iv) Access to information and (v) General management. The focus of discussion for this paper however is limited to health sector planning, CSO engagement and access to information which are directly linked to participation.

C.Methodology

1.The District Health System.— AGHA and its partners collected data in eight districts and at the national level. There are over 80 districts in Uganda each of which is individually responsible for management of its health services. The district is the key administrative unit in Uganda, with lower administrative units known as County, Sub- counties, parishes and villages.19 The District Health System consists of various tiers under the overall direction of the District Health Officer (DHO).20 Each district usually has a District Hospital and the district is sub divided into health sub-districts (HSDs). Each HSD has a Health Centre level IV (HC IV) and the head of the HSD is usually the officer in-charge of the HC IV. At a lower level, there are HC IIIs and HC IIs.21 The DHO sends resources to the head of each HSD for use of all HCs in that HSD.

2.The Pilot-Test and Data Collection.—After the indicators and the data collection tool were developed by AGHA in consultation with its CSO Partners, it was piloted in Mukono district in March 2008. After the pilot phase, data was collected from seven other districts that were selected to represent each region of the country. The districts that participated were Bushenyi, Kitgum, Lyantonde, Mukono, Pallisa, Rakai, Soroti and Tororo. Whenever possible, AGHA and its partners worked with health sector civil society groups which were already active in these districts to help set appointments and collect the necessary data. Two methods were used to collect the data. First, at each district, one-on-one interviews were conducted with the District Health Officer (DHO) and the Accounts Officer at the District Health Office. The purpose of the personal interviews was to elicit responses from the district planners on

19.Other departments include the District Educational Office and the District Forest Office.

20.The District Health System comprises a well-defined population living within a clearly delineated administrative and geographic boundary and includes all actors in the recognized spheres of health within the district. See, HSSP II, supra note 13, at 15.

21.Id.

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the procedures for district planning and budgeting, and to get financial figures on the planned and actual funds available for implementing programs in the financial year 2006/2007. These interviews also helped to assess the availability and accuracy of information. Interviews were also conducted with two CSO representatives to the national Health Policy Advisory Committee, as well as the Assistant Commissioner Planning/Health Services at the Ministry of Health.

Second, Focus Group Discussions (FGDs) were conducted in seven districts with about 10 to 12 members of CSOs including one or two lower level health center managers. The intention of the focus groups was to develop a broad and deep understanding of the opinions of the CSO staff, healthcare managers at the health sub- district about the district planning process, particularly in relation to CSO participation in planning, and access to health information. The notes from the interviews and FGDs were then transcribed and compiled according to districts in a database designed in line with the various thematic areas. The research theme then identified the emerging ideas or patterns. The emergent patterns and connections within and between the categories were identified, and the relative importance of the different themes and interconnections highlighted.22 The research team also collected and reviewed supplementary materials, from Government publications including the National Health Policy, Health Sector Strategic Plan II, and the 2007 Ministry of Health Transfers to the districts.

3. Challenges and Limitations of the Data.—Like any other research process, the data collection and data itself faced a number of challenges. First of all, the research team focused its efforts and interviews on the District Health Officer (DHO) and the Accounts staff in the DHOs office, as well as with CSOs in the district. The research team did not visit the office of the Chief Administrative Officer (CAO) who is the district accounting officer and the custodian of the district development plan and budget. Secondly, the research did not focus on the Health Unit Management Teams and the Village Health Teams which are supposed to be the structures at the health sub- districts that facilitate the involvement of communities in managing their health. This is largely because these structures are not yet functional and therefore could not be consulted in many districts. Collecting information about and from these teams would have provided another insight into the structures at the district level available to provide oversight and enhance public participation in health sector management.

22. ELLEN TAYLOR-POWELL&MARCUS RENNER,ANALYZING QUALITATIVE RESEARCH (2003).

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III. LEGAL AND POLICY FRAMEWORK GOVERNING PUBLIC

PARTICIPATION IN DECISION MAKING

Although Uganda’s legal and policy framework that governs the health system has put in place measures to allow the public to participate in fiscal and policy planning and have access to public information, in practice there is greater public participation at the national than at the district level.

A.Legal Framework for Civil Society Participation at the National Level

1.Public Participation.—Under the 1995 Constitution and the 1997 Local Governments Act, responsibilities and power has been given to the people at the lower levels so that they can participate in governance by managing their own affairs.23

2.Access to Information.—Access to information in government possession is one of the ways of strengthening the culture of transparency and accountability in the public sector, and is a pre-requisite for public participation in decision making. In furtherance of public participation, the 1995 Constitution also guarantees the right of access to information. Article 41 (1) guarantees the right of access to public information.24

3.The Right to Health.—Uganda’s legal framework does not expressly provide for either the right to health, or public participation in health related decision making, but some provisions in the law make reference to the right to health. The 1995 Constitution obliges the state to take practical measures to ensure the provision of basic

23.Article 176 (1) of the Constitution states that decentralization shall be based on the district as a unit under which there shall be such lower local and administrative units as Parliament may by law provide. The lower administrative units on which the health sub districts are based—the county, sub county, parish and village are created by the Local Government Act, 1997.

24.Article 41 provides: “Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.” The Access to Information Act, 2005 was enacted to promote an efficient, effective, transparent and accountable Government. The Act also seeks to promote transparency and accountability in all organs of the state by providing the public with timely, accessible and accurate information. This will empower the public to effectively scrutinize and participate in government decisions that affect them. However, the rules of procedure to regulate the procedures of this Act have however never been made hence delaying the effective operationalization of the law.

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medical services to the population.25 Article 39 recognizes the right of every Ugandan to a healthy and clean environment. Article 45 recognizes that all those rights, including the right to health, which are not mentioned explicitly shall not be disregarded. Uganda is a party to the International Covenant on Economic, Social and Cultural Rights which recognizes the right of individuals and communities to participation in health-related decision-making.

B. The Policy Framework

The Ministry of Health (MoH) has created structures and policies which allow civil society to participate in health planning. The National Health Policy (NHP) calls for a sector wide approach (SWAp) to health policy formulation.26 The Health Sector Strategic Plan (HSSP) II (2005/06–2009/10), which provides the strategy for implementing the National Health Policy was developed through an intensive and interactive process that involved all key stakeholders in health development in Uganda. There are key structures and processes that facilitate the participation of various stakeholders including civil society representatives in health sector planning. The major one is the Health Policy Advisory Committee (HPAC). HPAC provides policy guidance to the sector and allows for civil society representation through two civil society organizational representatives. The heads of department at MoH have been proactive in involving CSOs in HPAC, but civil society organizations also advocated for representation on this committee. The Civil Society representatives were formally selected to sit on HPAC by the MoH, and HPAC currently doubles as the Country Coordination Mechanism (CCM) for the GFTAM.27

There is a growing recognition and appreciation of the role of CSOs in health sector planning at HPAC. As a result, CSOs are increasingly influencing policy at the national level. One CSO representative on HPAC felt that representation was effective because her views are taken into consideration, and the views of the CSO representatives are increasingly considered in decision-making.28 At the moment, a CSO representative is the Vice Chairperson of HPAC lending credibility to CSO representation at this forum.29 However, civil society is starting to question the mode

25.Objective XX of the 1995 Constitution of Uganda.

26.MINISTRY OF HEALTH, NATIONAL HEALTH POLICY 7 (1999).

27.Interview with Enid Wamani, Vice Chairperson, HPAC September 22, 2008. See also,

INTERNATIONAL TREATMENT PREPAREDNESS COALITION, supra note 10.

28.Interview with Enid Wamani, id.

29.Interview with Robinah Katiritimba, Uganda National Health Consumers Organization,

October 2008.

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by which the current representatives were selected.30 The two persons on HPAC represent over 1000 CSOs carrying out health related activities. The MoH required CSOs at the national level to select their representatives and then forward the names to the MOH with evidence in form of minutes of the meeting. The names forwarded came from only two constituencies—CSOs working in malaria related activities and a coalition known as Voice for Health Rights.31 Other organizations outside these networks did not get a chance to participate in this decision making process.

The Annual Government of Uganda (GoU)/Development Partner (DP) Joint Review Mission (JRM) is another mechanism for civil society participation in health sector planning. Through the JRM, the MOH invites CSOs and other stakeholders to review the Annual Health Sector Performance Report and determine whether overall performance has been satisfactory. The JRM also sets the priorities for the following year at the strategic level, through the identification of priority technical programmes, agreeing to undertakings and determining broad allocations for the budget cycle. AGHA participated in the JRMs in 2007 and 2008, and also contributed to a report on health sector performance in Kitgum district in 2008. Lastly, there is the National Health Assembly (NHA) which was created to provide an annual forum for the central and local governments, civil society, and development partners to review sector policy, plans and performance.

Although there is an increasing recognition of the role of CSOs in policy formulation at the national level, CSOs still face a number of challenges. Firstly, CSOs generally do not have a single voice. Each CSO, even while representing civil society in HPAC, has a mandate it adheres to, and a constituency it represents which is generally narrow. CSOs therefore do not speak as one voice. As one of the HPAC CSO representative stated, “I remain accountable to my constituency … the few issues I have raised have been listened to….”32 This is largely because there is no set criteria for selecting CSO representatives at these structures. Selection is based on prominence or visibility of a particular CSO within the Ministry of Health and a few selected coalitions.33 Secondly, although the CSOs that participate in these fora are required to

30.Minutes of AGHA meeting with CSO representatives, November 6, 2008.

31.Malaria and Early Childhood Illness NGO Secretariat (MACIS), UNHCO. By virtue of their nationwide scope of work, other representation comes from The AIDS Support Organization (TASO), African Medical Research Foundation (AMREF), and the Private Not for Profit Institutions like the Uganda Catholic Medical Bureau, the Uganda Protestant Medical Bureau, Uganda Muslim Medical Bureau and the Private sector including Uganda Manufacturers Association.

32.Id..

33.Interview with Dr. George Bagambisa, Assistant Commissioner Health Services/Planning, Ministry of Health, September 28, 2008.

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provide feedback to the people they represent, this does not always happen. The feedback that is provided is usually only given to the smaller constituency that the CSO represents, and not to civil society as a whole. Thirdly, CSOs are very many in number, diverse in mandate, most of them uncoordinated, and struggling even to keep their projects running due to limited resources. Compared to the Development Partners (DP) who are said to be well coordinated, the majority of the CSOs lack the human resource and financial capacity to engage in public policy formulation.

During a consultative meeting AGHA held with CSO representatives from Kitgum District, they raised the concern that development partners have a stronger voice in decision making because they provide technical and financial support both at the district and national level.34 One CSO representative at HPAC reiterated the need for her constituency to build their technical capacity by familiarizing themselves with working documents like the National Health Policy, the HSSP, the Millennium Development Goals, and other guiding documents.35 There is a growing recognition and visibility of CSOs at the national level, which provides a good opportunity to make involvement effective. The window is open for CSO participation at the national level. The challenge is therefore for CSOs to effectively coordinate themselves to ensure transparent and democratic representation.

C. Framework for Public/CSO Participation at District Level

Whereas the mechanism for CSO participation at the national level has been somewhat streamlined through structures and processes, there is still need for greater operationalization and restructuring of the mechanisms for collaboration between districts, health sub-districts and CSOs. The National Health Policy broadly provides for a collaborative mechanism between communities and local health authorities, but does not explicitly lay down procedures for consultation and collaboration.

At the district level, the District Health Teams (DHTs) were established as a technical group charged with the responsibility of planning, budgeting, coordinating resource mobilization, and monitoring of overall district performance.36 The DHTs, alongside the diverse partners including CSOs and DPs develop the District Health Sector Strategic Plan, which in turn is an integral part of the rolling District Development Plan. The Chief Administrative Officer (CAO) holds an annual conference to review the district budget which is passed by the District Council. In

34.AGHA-CSO Meeting, supra note 30.

35.Interview with Robinah Kaitiritimba, CSO Representative on HPAC, October 2008.

36.HSSP II, supra note 13, at 19.

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some districts, CSOs are allowed to passively participate in the annual budget conference. The NHP established the Health Sub-District (HSD) as a functional sub- division or service zone of the district health system to bring quality essential care closer to the people, allow for identification of local priorities, and more importantly involve communities in the planning and management of health services and increase responsiveness to local needs.37 Each HSD management team is expected to provide overall day to day management oversight of the health units and community level health activities under its jurisdiction.38 Community participation at village level is supposed to be coordinated by a network of functional Village Health Teams (VHTs) who facilitate the process of community mobilization and empowerment for health action.39 Each village is supposed to have a VHT comprised of 9-10 people selected by the village (LCI).40 The VHT is responsible for: mobilization of additional resources and monitoring of utilization of all resources for their health programs including the performance of health centres.41 In reality, these teams are not yet in place in most districts due to lack of resources for training and supporting these teams.

IV. FINDINGS

A.District Health Planning

1.Procedures for District Development Plans.—According to the data collected through the survey, there were no clearly set standard procedures for developing the district development plans and therefore involving stakeholders like CSOs. The procedures varied from district to district. On the whole, district priorities are developed through meetings organized by planners from the District Technical Planning Committee (DTPC). The DTPC calls budget planning meetings to develop a work plan. Generally the districts have a bottom-up approach. Views are collected from lower level committees at the sub district and parish levels. Four DHOs reported that views are also obtained from staff of various departments who meet under different sectors. While in four of the districts it was reported that the budget meetings are attended by sub county leaders, in the other four, only the heads of the various district departments attend. The criteria used in identifying stakeholders for the planning

37.NHP, § 5.3.

38.Id., HSSP II, supra note 13, at 19.

39.Id., at 20-21.

40.Id.

41.Id.

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process varied from district to district. One DHO said the CAO identifies a team and the Chief Finance Officer (CFO) chairs the meeting. Another DHO said it was the DTPC. Yet another DHO said identification of stakeholders is based on the guidelines set by the Ministry of Local Government. There was a general feeling that little or no representation of CSOs exists at the lower levels because most CSOs do not have branches at the lower levels. Furthermore, there may be no funds to support such meetings at the lower levels: “At the sub-county, they [CSOs] are not there because they [the sub-county leaders] may not have funds to facilitate these meetings.”42

Respondents did note that at the lower levels, there are supposed to be village health teams (VHTs) which comprise of community members who participate in the management of health facilities, but these VHTs are not functional which limits civil society participation. The variation in the procedure highlights the need to develop standard guidelines for development of district plans, particularly priorities for health. There is also need to develop clear standards or criteria to identify stakeholders who should be involved in the development of the district plan and to hold district leadership accountable to following these standards. These stakeholders should include CSOs that carry out health-related activities in the districts concerned.

2. Staff Involvement in Planning.—Health Unit management staff have considerable expertise about community needs because of their experience within the health centers. These key stakeholders must be involved in the planning cycle early enough to ensure that the budgets and work plans address the needs they identify in their work. In all the districts surveyed, health facility staff were involved in planning and budgeting, but lower-level health unit staff who are closest to the community were only involved in the planning process at a later stage. A FGD Participant from Kitgum said, “I think the district should conduct studies so that the planning process is informed by current information.”43 Health unit staff from all levels could help bring this current information to the planning process.

B. CSO Meaningful Participation

According to one CSO representative, meaningful participation is defined as, “Participating to understand and to contribute, as well as to monitor implementation.”44 By definition, meaningful participation should also include the ability to participate in

42.FGD, Soroti.

43.FGD, Kitgum

44.Interview with Robinah Kaitititimba, supra note 35.

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a way that actually influences policy. The data collected at the district level provided little evidence that civil society is able to influence policy, contribute to or even monitor implementation of policies.

1.The Number of Interest Groups.—In terms of the number of interest groups represented, there was a general feeling that the numbers (1-2 people) of CSOs represented on district health planning meetings and lower council level was small. There is a secretary for health who sits on the District Council and is supposed to act as a community representative. However, CSO representatives felt that many other interest and vulnerable groups such as people living with HIV/AIDS, youth, the elderly were not adequately represented on the district health committee.45 Yet meaningful participation requires that special attention be given to the views of vulnerable groups and information should be shared with the more vulnerable members of society to enhance participatory methods.

2.Number of Planning Meetings—Concerning the number of meetings, FGD participants indicated that the number of District Council and Sub County council health related meetings were high (average of eight per year). Although the number seemed high, some FGD participants felt that measuring the proportion of the meetings they attended was a challenge, given that there were some meetings to which they were not invited: “When we are not invited, we can’t even know that meetings take place.”46

However some respondents reported that they successfully attended all the scheduled meetings. “I think for HIV Committee, I was able to attend all the meetings planned in that financial year.”47 There are no clear benchmarks or guidelines on the number and even the type of meetings that CSOs should attend in a year. The District AIDS Committee (DAC) was often cited by respondents as a committee where there is good CSO representation and participation.48 Yet recently the DACs have been crippled by lack of resources for coordination of meetings: “These District AIDS Committees were active when they were funded by Uganda AIDS Commission but since it closed we have not had any meetings because of funds.”49

45.FGD.

46.FGD Participant, Lyantonde.

47.FGD Participant, Lyantonde.

48.However, there was some concern about insufficient provision for participation of PLHA

on the DACs.

49.FGD Participant, Tororo.

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3. Notice for Meetings.—While CSOs are sometimes invited to the annual budget conference, this is the last stage of the district planning process and does not give ample opportunity for influencing priorities. In some districts, CSOs are given very short notice of the meetings limiting their ability to prepare adequately. Even the District Councillors may receive the district budget the day before the Budget Conference, limiting their time to adequately prepare for deliberations.50 In some cases, even when notice is sufficient, members of the community and CSOs do not want to attend the meeting because they do not recognize or understand their role in budgeting or in monitoring the spending of funds: “I think the public is involved but it’s not maximum as some of them are not aware, they don’t know what is being planned and budgeted. Those who know may participate at parish level but when it comes to implementation, they don’t see where the money goes. So when it comes to calling people to come and plan, they [the community] say, ‘Why should I go? After all I don’t see where the money goes.”51

The audit also found that meaningful participation and engagement of CSOs is limited by mutual mistrust between some of the organizations and district planners. Some district officials were implicated in the misuse of monies from the Global Fund, and in some cases district officials have been found to divert public drugs to private clinics. CSOs in Kitgum were frustrated by the fact that a number of government staff arrested for stealing drugs have been released without trial.52 CSOs also complained that they are not involved in the management of funds received after they have been disbursed. Their limited involvement ends at the planning process. On the other hand, it was mentioned that CSOs too had elements of corruption. District officials pointed out that some CSOs are reluctant to share their work plans and budgets with district officials. CSOs also do not engage Government in the planning and management of their resources

Generally, there is limited CSO engagement in implementation. For progress to be achieved in the government obligation to enhance public participation in decision making, there is certainly strong need to engage CSOs in implementation, given their networks of resource persons at the grassroot level. If CSO participation is to be meaningful, those involved must be adequately informed and facilitated to participate. CSOs and indeed all public officials involved in health planning must be aware of the number and type of planning meetings they are to attend in a year, the agenda for these meetings, the relevant documents that facilitate these meetings, and must be given all

50.AGHA-CSO Meeting, supra note 30.

51.FGD Participant, Kitgum.

52.Id.

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the relevant information in adequate time to prepare for these meetings. This is what active and informed participation entails otherwise participation will amount to mere representation that does not influence decision making.

4. Challenges Faced.—Challenges to effective CSO participation cited included lack of information, lack of coordination amongst CSOs, inadequate skills to advocate and lobby, and mistrust between CSOs and public/civil servants. In order to achieve meaningful participation, there must be transparency and accountability to build trust, proper and timely communication, training in lobbying and advocacy skills, and an emphasis on the principal of participatory methods where civil society is represented and consulted at all levels. The existing mechanism of public engagement must be strengthened and based on participatory approaches, which includes routine meetings, joint planning right from the onset of the planning cycle, and joint implementation.

C. Access to Information

Access to health related information is a crucial aspect of meaningful participation. The majority of respondents reported that there was some access to information either on request or voluntarily, but capacity constraints such as inadequate or lack of human resources, infrastructure, equipment and logistics were also identified to be hampering the flow of information. Respondents also stated that some stakeholders guard the information in a jealous manner, instead of sharing it broadly with others. There is certainly a strong need for the districts to develop clear information dissemination strategies, ideally leveraging the existing mechanisms. FGD respondents from Bushenyi said, “The government should always give information, and we shouldn’t struggle for the information. For example, the district has not bothered to tell us that at such a health centre there are ARVs so that people can go there for treatment.”53

Staff in the health facilities did not have adequate access to relevant policies such as Human Resource and Financial Policies, National Health Policy and the Health Sector Strategic Plan. Inaccessibility to relevant policies and documents can contribute to poor conceptualization and misinterpretation of issues, which will greatly impact on the quality of service delivery. Health sector staff and stakeholders must be oriented on the existing policies that affect their work.

53. FGD, Bushenyi.

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V. DISCUSSION OF FINDINGS

Uganda has embraced a participatory approach to developing plans and budgets for the health sector. Considerable progress has been made in implementing the decentralization strategy envisioned in the Constitution and National Health Policy. However, some components of the right to participation in health-related decision making have not been fully embraced. The human rights approach to participation requires the active and informed participation of individuals and communities in health decisions that affect them. Government is obliged to take steps to facilitate the effective participation of communities, by ensuring the right to seek and receive health-related information, the right to express views which are respected, and the right to basic health education.

The findings of this survey however suggest that the Ministry of Health has not taken adequate steps to ensure the active and informed participation of individuals and communities in health decisions. Not much has been done to educate the public, District Council Members, and CSOs about the right to participation in planning, the right to seek and receive health planning information, and the right to express views that are respected. This is manifested by the fact that many health facility staff do not have access to basic planning documents such as the HSSP, NHP, as well as by the mistrust between CSOs and District Health Planners. Health planning is largely seen as the role of health planners and a few selected stakeholders. Moreover, limited information sharing and lack of capacity also undermines the ability of CSOs to meaningfully participate, magnified by the uncoordinated representation in planning even where there is an opportunity. These factors have been major obstacles to meaningful participation.

A. Lack of Active and Informed Involvement

Although the structures for CSO representation at the national level have been set out through processes such as HPAC and its working groups, these structures have not yet been developed at the district level. Some CSOs have participated in meetings at the Districts but have not been officially elected by other CSOs as their representatives. The number and type of meetings to be attended by CSOs has also not been defined. In some districts, CSO involvement in budgeting comes too late because by the time they get involved, decisions about the budgets have already been made.

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B. Limited Information Sharing

Participation requires that information should be available and not withheld if tangible health-related decisions are to be taken. Yet, not much has been done to educate the planners at the district and CSOs about the importance of information sharing in health- related decision making. Joint planning at the districts is limited by the lack of trust between CSOs and District Health Officials and the exchange of allegations of corruption. As a result, there is limited information sharing between CSOs and District Health Officials. CSOs and DHOs should share information that will facilitate the plans for the communities that they serve.

C. Lack of Technical Capacity

Another limitation affecting participation is the lack of technical capacity on the part of some CSOs. At both the district and national level, some CSO representatives lack the capacity to understand technical issues of health policy planning including health priorities and strategies in the MDGs, PEAP, the NHP and the HSSP. Moreover, CSOs are diverse, understaffed, and poorly facilitated. This limits their ability to fully participate in health sector planning. Yet where information is guarded jealously, CSOs will remain under capacitated, and unable to engage in meaningful discussions with health planners.

D. Uncoordinated Representation

There are no set criteria or guidelines for CSO representation in health sector planning both at the national and district level. Therefore, there is a general problem of uncoordinated representation. At the national level, CSOs are selected on the basis of prominence and visibility of their leadership.

Additionally, inadequate feedback mechanisms hinder civil society representatives from truly representing broader civil society in health sector planning and decision making. CSO representatives are supposed to bring information back to their constituents—some are better at this than others. However, because CSOs at health planning processes are not representative of all the CSOs, there is a problem of giving feedback to those they are supposed to represent. This limits not only the ability of the represented to understand their role in health sector planning, but also raises the question as to who is being represented. The process for choosing these representatives is not clear or transparent, which also contributes to concerns within the sector about how they are being represented at the policy level. All this is magnified by the fact that

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coordination of civil society is still weak in Uganda, and CSOs still do not have a unified voice while representing others. This is largely because CSOs have varied mandates and are diverse except for the UAC Partnership committee. Without a common forum for consultation and providing feedback, there is a risk that the few CSOs involved in health sector planning represent only very limited constituencies or interests.

VI. CONCLUSION

A policy and legal framework for public participation in planning and governance exists in Uganda. But this framework does not comprehensively embrace a human rights perspective. This is because Government officials in the health sector, particularly at the district level, have not taken steps to facilitate effective participation of communities. Not much has been done to ensure the right to seek and receive health- related information, and the right to express views which are respected. As a result, health planners and CSOs have not understood the need for CSO engagement and therefore information sharing. This is magnified by the fact that CSOs remain uncoordinated, diverse and with varying interests. The district level planners need to take steps to actively engage CSOs in planning by providing them with information on time, and engaging them at the onset of the planning process. CSOs on their part must devise means of coordinating their activities so as to ensure that representation is democratic, feedback to others is provided, and that they have a unified voice. CSO representatives must also enhance their capacity to understand technical issues in health planning to enable them to meaningfully influence health decision making.

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HUMAN RIGHTS-BASED ACCOUNTABILITY FOR

HEALTHCARE IN UGANDA

Tenywa Aloysius Malagala*

ABSTRACT

The promotion of the right to the health of the people involves, among other things, the eradication of injustices such as the discrimination and stigmatization of patients by health services providers. This article argues that a human rights-based accountability promotes health as a human right proper to every human being, for which all duty-bearers must be held accountable. It establishes that progress lies in enabling people to have a say in the matters of their health, and in demanding that they be treated with dignity and respect for all their rights. It is shown that the rights-based accountability for health calls for design and implementation of health-related programmes that reflect ten key principles of a right to health analytical framework. These include: (a) the recognition of the international, regional and national human rights laws, norms and standards; (b) Resource constraints and progressive realization; (c) Obligation of Immediate Effect;

(d) Freedoms and Entitlements; (e) Available, Accessible, Acceptable and Quality; (f) Respect, Protect and Fulfil; (g) Non-discrimination, Equality and Vulnerability; (h) accountability; (i) Active and Informed Participation; and

(j)Empowerment and International Assistance and Cooperation.

I.INTRODUCTION

Health is a fundamental human right closely related to the right to life and necessary for the full realization of other human rights, including economic rights.1 Article 1 of the Universal Declaration of Human Rights provides that ‘all human beings are born free and equal in dignity and rights;’ and Article 25(1) provides that ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and the necessary social services.’ It follows, therefore, that every human person is entitled to be treated with dignity. Consequently,

* Graduate of the University of Essex. Email:<[email protected]>. I thank my supervisor, Professor Paul Hunt and his colleague, Professor Kevin Boyle (RIP) for their insights, erudite supervision and contribution to my training.

1. See, article 6 of the International Covenant on Civil and Political Rights (ICCPR) as interpreted by the Human Rights Committee General Comment No.6 (189).

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one of the attributes of a life of dignity that everyone aspires to is health, which ‘is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’2 Thus, the right to health means a right to a functioning, effective and integrated health system, which encompasses healthcare and other determinants of health.3 Good health increases the productivity of the population, which is essential for economic development and stability of the nation.4

This article argues that the promotion of the right to health of the people involves more that than provision of medical facilities, prevention, and treatment of ailments. It involves addressing the injustices such as discrimination, stigmatization and abuse of patients by health service providers. The most victims of such abuses are vulnerable members of society in Uganda, such as women, children, lepers and all the victims of neglected diseases. To promote this right to health of the people, it is incumbent on all the duty-holders to design and implement health-related programmes using at least ten key principles of a right to health analytical framework. These include among others: (a) the recognition of the international, regional and national human rights laws, norms and standards; (b) Obligations under the right to health; (c) Resource constraints and progressive realization; (d) Freedoms and Entitlements; (e) Available, Accessible, Acceptable and Quality; (f) Non-discrimination, Equality and Vulnerability;

(g) Accountability; (h) Active and Informed Participation; and (i) Empowerment; and International Assistance and Cooperation.

From 1986 to 1993, the current Ugandan Government under President Yoweri Museveni began a period of rehabilitation and reconstruction of the country. Many multilateral and bilateral donors increased their levels of aid to support the rehabilitation effort. Although improvement of healthcare service-delivery to all people was a key element in many aid programmes, this was not the main concern of the Government. It concentrated instead on hospital rehabilitation as reflected in its national health plan at the time.5 No wonder, therefore, that numerous vertical programmes were created by various donors to fill the policy vacuum. For instance, the United Nations Children’s Fund (UNICEF) had child survival programmes; USAID had family planning; DANIDA—essential drugs; and the World Bank—physical rehabilitation. At this stage, health in Uganda was not treated from a human rights

2.See, the Opening text of the WHO Constitution (1946).

3.See, A.H. Khan, Health and Human Rights, in DAILY STAR, Thursday December 20, 2007.

4.Amartya Sen notes that ‘good health and economic prosperity tend to support each other. Healthy people can more easily earn an income, and people with a higher income can more easily seek medical care, have better nutrition, and have the freedom to live healthier lives.’ Cited in id.

5.See, J.MACRAE,AIDING RECOVERY:THE CRISIS OF AID IN CHRONIC POLITICAL EMERGENCES

(2001).

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perspective either by the Government or by the donors. In fact, even though Uganda’s Poverty Reduction Strategic Plan (PRSP) recognizes health as key to poverty reduction, and thus contributes greatly to the growth and development of people and the country at large. The health sector does not apply a right to health analytical framework to promote health, and not all its policies are fully pro-poor in the true sense of the word.

II. DEFINITION OF HUMAN RIGHTS-BASED ACCOUNTABILITY

A human rights-based accountability for health can refer to a ‘process which requires government to explain and justify how it has discharged its obligations regarding the right to health.’6 It is also an opportunity for the rights-holders ‘to understand how the government and other duty-holders have discharged their right to health obligations.’7 It calls for identification of human rights obligations of all duty-holders in the health sector and making use of the human rights law8 to advance the right to health of all the people in Uganda. It does not seek to punish duty-holders for the violation of the right but redress in view of improving performance to promote the right to health. It is motivated by a conviction that ‘giving people a say in their own future, and demanding that they be treated with dignity and respect for their rights is the way to make progress.’9

III.THE TEN KEY RIGHT TO HEALTH ANALYTICAL FRAMEWORK

A. Human Rights Laws on the Right to Health

Uganda is signatory to a number of international and regional human rights treaties that give rise to the legal basis of the right to health. The human rights obligation to promote the right to health of all people in Uganda stem from these international and regional human rights instruments. These instruments ought to guide Uganda in its legislation and policy on the right to health.

6.See, H. POTTS, ACCOUNTABILITY AND THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH 13 (2007).

7.Id., at 4-5.

8.See, Toebes Brigit, Human Rights and Health Sector Corruption, in GLOBAL HEALTH AND

HUMAN RIGHTS: LEGAL AND PHILOSOPHICAL PERSPECTIVES (J. Harrington et al, 2009).

9.See, IRENE KHAN, THE UNHEARD TRUTH: POVERTY AND HUMAN RIGHTS 5 (2009).

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1.International Human Rights Laws.—These include the International Covenant on Economic, Social and Cultural Rights;10 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;11 the UN Convention on the Rights of the Child;12 the International Convention on the Elimination of All Forms of Discrimination against Women;13 the International Convention on the Elimination of All Forms of Racial Discrimination;14 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.15

2.Regional Human Rights Instruments.—These instruments include the African Charter on Human and Peoples’ Rights;16 the African Charter on the Rights and Welfare of the Child;17 and the Protocol to the African Charter on the Rights and Welfare of Women.18 Other regional instruments which recognize the right to health, but to which Uganda is not a signatory, include the European Social Charter,19 and the Additional Protocol to the American Human Rights in the Area of Economic, Social and Cultural Rights.20

However, of all the human rights instruments, it is the ICESCR in particular which articulates most broadly the legal foundation of the right to health by providing

10.Adopted and opened for signature, ratification and accession by the General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27; hereinafter ICESCR.

11.Adopted by the UN General Assembly on 10 December 1984 (resolution39/46); entered into force on 26 June 1987; hereinafter CAT.

12.Adopted and opened for signature, ratification and accession by the UN General Assembly resolution 44/25 of 20 November 1089; entry into force 2 September 1990, in accordance with article 49; hereinafter CRC, art. 24.

13.Adopted in 1979 by the General Assembly, hereinafter CEDAW, art 11(1) (f) and 12.

14.Adopted and opened for signature and ratification by the General Assembly resolution 2106

(XX)of 21 December 1965; entry into force by 4 January 1969, in accordance with article 19; hereinafter ICERD, art. 5(e)(iv).

15.Adopted by the General Assembly resolution45/153 of 18 December 1990, art. 28.

16.Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.58 (1982), entered into force October 21, 1986, art. 16.

17.OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999, art. 14.

18.Protocol of 2003, art. 14.

19.Council of Europe treaty, adopted in Turin on 18 October 1961 and revised 1996. The revised Charter came into force in 1999 and is gradually replacing the initial 1961 treaty. See art. 11 (Revised).

20.Protocol of San Salvador, O.A.S. Treaty Series No. 69 (1988), signed November 17, 1988, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L. V/II.82 doc.6 rev. 1 art 67 (1992), art. 10.

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that everyone has the right ‘to the enjoyment of the highest attainable standard of physical and mental health.’21 However, the scope and meaning of the right to health has been clearly explained by the Committee on Economic, Social and Cultural Rights that oversees the implementation of the ICESCR.22 While in its General Comment No. 3 the Committee reiterates the state parties’ core obligation to ensure the satisfaction of minimum essential levels of each of the right enunciated in the Covenant, it leaves the minimum essential level of each right to the discretion of the incumbent state party;23 although the Alma-Ata Declaration described as essential ‘primary healthcare’ for the right to health.24

3. The Ugandan National Legal Framework.—The supreme law of Uganda expressly provides for the protection and promotion of human rights of all peoples.25 Accordingly, Uganda is required to take all practical measures to ensure the provision of basic medical services to the entire population, and also to promote access to the underlying determinants of health such as food, water, shelter and proper sanitation.26

Precisely, the Constitution of Uganda upholds the human rights principle of non-discrimination and equality of all peoples. It states that ‘… all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent shelter, adequate clothing, food security and pension and retirement

21.See, art. 12.

22.See, General Comment 14, adopted in May, 2000. The Committee on Economic, Social and Cultural Rights publishes its interpretation of the content of human rights provisions in the form of General Comments on thematic issues. Although these general comments are not legally binding documents, they offer authoritative interpretation of the meaning and content of a particular right for the benefits of the States parties to the ICESCR, in order to assist them implement the covenant; and to help the States parties in fulfilling their reporting obligations. See, The Purpose of General Comments, U.N. Doc. E/1989/22, Annex III (1989), at 87, reprinted in Compilation of General Comments and General Recommendations, adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 (2003), at 8. See also, Fact Sheet No. 16 (Rev.1): Committee on Economic, Social and Cultural Rights, available at <http://www.unhchr.ch/html/menu6/2/fw16.htm#5>.

23.See, General Comment No. 3, ¶ 10.

24.See, The 1978 Declaration of Alma Ata. Although this declaration is not legally binding like human rights treaties, its message on the right to health is widely recognized in other international and regional human rights instruments as above.

25.See, UGANDA CONST. (1995), arts 21 (equality and non-discrimination), 22 (right to life), 33 (right to education), 34 (rights of children), 35 (rights of disabled people), 39 (right to clean and health environment), and 40 (economic rights).

26.See id., Preamble, ¶¶ XX (on medical services), XXI (on clean and safe water), and XXII (on food security and nutrition).

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benefits.’27 However, as noted by the Uganda Human Rights Commission (UHRC) in its research on health rights, the provisions of this Constitution ‘reflect a commitment but do not amount to an obligation since they fall outside the substantive provisions of the Constitution.

Consequently, ‘the right to health is neither appreciated nor understood within the medical and legal circles.’28 It is not therefore surprising that there appears to be no court decisions existing in which judicial review has taken place on the basis of the right to health and yet enormous incidences of violation of this right have occurred and continue to occur. However, in an effort to actualize the constitutional provisions on the right to health, the Constitution of Uganda and the Local Governments Act29 downsized, restructured and decentralized the services of the Ministry of Health (MoH). Responsibility and authority for delivery of health services were brought down to the level of the district and other local authority entities such as municipalities. Since then, the MoH has introduced a sector-wide approach (SWAP) as the guiding principle in health planning and resource mobilization.30 The intention of the SWAP is to promote transparency, ease securing funds needed for capacity building, and decision-making procurement based on priorities.31

While the Constitution of Uganda and the Local Governments Act are steps in the right direction to promote the right to health in Uganda, they are not enough to guarantee the same. The Uganda National Health Policy of 1999 has provisions on the legal aspects of health but it lacks any enforcement mechanism. Its policy objective is to ‘review and develop the relevant legal instruments that govern and regulate health and health-related activities in the country, in order to ensure that principles and objectives of this policy are attained.’32 In this line, the policy commends the Government to update, formulate, and disseminate laws, regulate and put in place enforcement mechanisms for a number of health-related issues.33 However, the

27.See, National Objectives and Directive Principles of State Policy, objective XIV(b).

28.See, UGANDA HUMAN RIGHTS COMMISSION (UHRC), THE VOICE OF PATIENTS: THE STATE

OF THE RIGHTS OF PATIENTS AND THEIR ATTENDANTS IN UGANDA (2005), at x.

29.Cap. 243.

30.See, MINISTRY OF HEALTH, REPORT OF UGANDA HEALTH FACILITIES SURVEY (UHFS) 1

(2000).

31.Id.

32.See, MINISTRY OF HEALTH, NATIONAL HEALTH POLICY (1999), § 13, available online at <http://www.health.go.ug/docs/NationalHealthPolicy.pdf> (accessed on December 28, 2007).

33.See id. These include laws regarding (a) the development and control of the National Heath Service, (b) traditional medicine, including traditional midwifery, (c) the training in and conduct of medical and health research, (d) the importation, manufacture, use and disposal of hazardous materials,

(e)the protection of employees against health hazards related to their employment in liaison with relevant

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Government of Uganda has not accomplished much. The existing regulatory framework to monitor the health service-delivery in Uganda is inevitably weak. The National Drug Authority, which performs this function, is inefficient due to lack of a clear legal framework. While it is its responsibility to control the procurement and distribution of drugs in Uganda, the National Drug Authority (NDA) is not effective in controlling the sale and buying of medicines in the country. Many people, especially the poor, can buy any medicine from any drug shop without consulting a doctor. This has grave consequences, as people may buy expired drugs or overdose or under dose, as the case may be. This has led to increased antibiotic resistant bacteria in Uganda.

In a 2005 newspaper article, one Kibuuka reported the confiscation of 500 containers of fake drugs by Phoebe Mukasa, the District Drug Inspector.34 He also reported the instant death of John Ssenfuka 17, a resident of Magalagata village in Galiraaya sub-county, after taking the drugs he bought in a shop. A post-mortem carried out in Kayunga hospital indicated that Ssenfuka had taken expired drugs. It is also common for people to buy strong drugs freely from the clinics. There is therefore, probably, a need for some positive health laws in the country to regulate a number of health-related issues, including the provision and maintenance of the determinants of health. Uganda needs laws relating to various aspects of health such as epidemic diseases like ebola, the prevention of malaria, eye surgery, quality of food, women and children’s health, etc require legal regulation. Similarly, laws that deal directly with the rights of patients are urgently required.35

4. Other Jurisdictions.—Uganda needs to emulate the examples of other national constitutions that categorically defend and promote the right to health. For instance, article 27 of the Constitution of South Africa clearly recognizes the right to health. It reads:

organizations, (f) food hygiene and safety, (g) Government Notice No. 245 of 1961 that governs and regulates the Religious Medical Bureaux, (h) Environment Health Control, (i) consumer protection, especially for the vulnerable groups including women, children and persons with disability, and (j) stigmatization and denial due to ill health or incapacity.

34.See, L. Kibuuka, Drugs Authority Raids Fake Shops in Kayunga, THE NEW VISION, December 10, 2005.

35.See, MINISTRY OF HEALTH, HUMAN RESOURCES FOR NATIONAL HEALTH POLICY (2006), available online at <http://www.health.go.ug/docs/HRH_Policy_Final.pdf> (accessed December 28, 2007). The Policy invites the Government of Uganda to ensure that roles, mandates and responsibilities of various bodies dealing with regulation, standards and maintenance of ethical conduct are clearly defined, and regularly communicated; [and also to] ensure that effective legal and monitoring mechanisms for dealing with patient/client grievances are in place, while deploying appropriate advocacy to educate patients/clients on their rights.

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a.Everyone has the right to have access to healthcare services, including reproductive healthcare; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance must be accessible.

b.The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.

c.No one may be refused emergency medical treatment.

Such clear provisions on the right to health in the national constitution make it easy for the victims whose rights have been violated to be defended in the courts of law. Already, the South African Constitutional Court has recorded at least two cases on the right to health.36 In the Soobramoney case,37 the court had to decide whether a local hospital had violated the right to healthcare, expressed in article 27 above, by refusing to provide the plaintiff, Mr Soobramoney, with periodical renal dialysis treatment necessary to maintain his life. Unfortunately, the court ruled in favour of the Minister of Health, stressing the need for non-interference of the court in rational decisions taken in good faith by the political organs and medical authorities at both political level in fixing the health budget, and, functional level in deciding upon priorities to be met.38 It, however, raised the profile of the right to health in South Africa.

Article 196 of the 1988 Constitution of Brazil details the right to health in the following words: Health is a right of everyone and a duty of the State, guaranteed by social and economic policies aimed at reducing the risk of illness and other hazards and at universal and equal access to the actions and services for its promotion, protection and recovery. Consequently, the Brazilian courts have been able to defend the right to health. For instance, more often than not in cases involving the State’s denial of access to HIV/AIDS treatment to patients, the courts have often generally interpreted the right to health and ruled against the State and ordered it to provide medical treatment to the public.

36.See, Soobramoney v. Minister of Health Kwazulu-Natal, Const. Court of South Africa, Case CCT 32/97; and Minister of Health v. Treatment Action Campaign, available at <www.concourt.gov.za> (accessed October 20, 2007).

37.Id.

38.Id.

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In Dina Rosa Vieira v. Municipality of Porto Alegre,39 the plaintiff claimed that she was entitled to receive free HIV treatment from the local government as a corollary of her right to healthcare according to article 196 cited above. Although the defendant gave lack of resources as the reason for this, the Supreme Federal Tribunal rejected the defendant’s argument, and found it to have violated the rights to life and healthcare guaranteed in the Brazilian Constitution. The Tribunal ordered the State to provide all treatment needed by the plaintiff.40

In Choose v. Byrne,41 the Supreme Court of New Jersey contested the legality of a statute, which prohibited the medical funding of abortions except where it was medically proved necessary for preserving the woman’s life. The plaintiffs claimed that the denial of medical funds violated the human rights assured by the due process and equal protection clauses of the New Jersey and US Constitutions. The Supreme Court concluded that this statute violated the ‘fundamental right to health under both constitutions.’42

The European Court of Human Rights has given a ruling on non-interference with information related to family planning services and pre-and postnatal care. In

Open Door and Dublin Well Women v. Ireland,43 the European Court of Human rights ruled that there had been an interference with the right of the applicant counselors to impart information and the right of Mrs X and Ms Geraghy to receive information in the event of pregnancy. There was a violation of article 10 of ECHR.44 It is therefore clear that a number of countries take the right to health seriously by putting in place a legal framework to protect and promote it. Why should Uganda be an exception?

5. The Role of the UN Special Rapporteur.—The UN Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health (the right to health) plays an important role in explicating the legal basis of this right in many of his country mission reports to the UN General Assembly and to the Commission of Human Rights.45 These reports offer a viable source of law and

39.Decision No. RE-271286.

40.Id.

41.Supreme Court of New Jersey, 91 N.J. 287; 450 A. 2d 925, 18 August 1982.

42.Id.

43.See, ECHR, judgment of 29 October 1992, A.246.

44.Id. See also, The Right to Know, Human Rights and Access to Reproductive Health Information, in ARTICLE 19 (S. Coliver ed., 1995), at 329.

45.On 22 April 2002, at the 49th meeting, the Commission on Human Rights in resolution 2002/31, appointed Paul Hunt, as Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. He was mandated to gather, request, receive and exchange right

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guidance on the practical implementation of the right to health.46 For instance, in his report from the Ugandan Mission, 17-25 March 2005, on the issue of neglected disease, he identified key features on the right to health approach to neglected diseases. These included the government’s legal duty to provide access to health information and education for all people, on the prevention and health promoting behaviour, as well as on how to access health services;47 the right of individuals and communities to informed and active participation in health decision-making which affect them48 (which Uganda encourages in the Preamble of its Constitution [Article II(i)] and promotes in practice through involving civil society organizations in the preparation of Uganda’s PRSP/PEAP49 and through its new policy on decentralization in the health sector);50 Uganda’s legal requirement to devise a coherent strategy and a cost plan of action to train and maintain health professionals in the health sector, to alleviate the deprivation of the most disadvantaged communities in remote areas of their right to healthcare services.

The Special Rapporteur also reiterates that the principle of non-discrimination and equal treatment in relation to the right to health has a legal foundation in international law and is an obligation of immediate effect. He encourages Uganda to take measures to ensure that health policies and practices promote equal access to health services, and to integrate a gender-perspective throughout its policies and programmes.51

to health information from all relevant sources; dialogue and discuss possible areas of cooperation with relevant actors, including governments, relevant United Nations bodies, specialized agencies and programmes, in particular the WHO, and the Joint United Nations Programme on HIV/AIDS, as well as non-governmental organizations, and international financial institutions; Report on the Status, throughout the world, of the right to health, including laws, policies, and good practice and obstacles; and make recommendations on appropriate measures that promote and protect the right to health.

46.The Missions he has undertaken include: Mission to Uganda, 17-25 March 2005, see E/CN.4/2006/48/Add.2; Mission to Mozambique, December 2003, see E/CN.4/2005/51/Add.2; Mission to Peru, June 2004, see E/CN.4/2005/51/Add.3; Mission to Romania, August 2004, see E/CN.4/2005/51/Add.4; Mission to the World Trade Organization, 16-23 July 2003 and 27-28 August 2003, see E/CN.4/49/Add.1.

47.See, E/CN.4/2006/48.Add.2, ¶¶ 33 and 34.

48.See, E/CN.4/2006/48.Add2, ¶ 36.

49.See, PEAP 2000, summary and objectives, at 12; PRSP, Resource Allocation to the Health Sector in Uganda, Paper No. 7, 2004, at 16.

50.See, Village Health Committees (Health Centres I to IV), in the HSSP of Uganda’s PRSP.

51.See, Report of the Special Rapporteur on the Right to Health Mission to Uganda, 17-25 March 2005 (E/CN.4/2006/48/Add.2) ¶ 54.

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B. Uganda’s Legal Obligations under the Right to Health

Like any other State that has ratified these binding international human rights instruments, Uganda has an obligation to ensure the right of every one to the enjoyment of the highest attainable standard of health.52 There are mainly three types of obligations for Uganda under these instruments. These are: respect, whereby it must refrain from directly or indirectly interfering with people’s right to the enjoyment of the highest standard of physical and mental health;53 protection, whereby through legislation it provides laws that prevent third parties such as corporations or investors from interfering with people’s enjoyment of the right to health;54 and fulfilment, for instance, by taking positive and effective measures to facilitate the progressive realization of all human rights in general, and the right to health in particular. The obligation to ‘respect’ requires a State to refrain from actions that endanger the health of an individual, as explained by Bothe.55 In a way, and according to Toebes, the obligation to respect is a ‘negative obligation’ for the State.56 On the same point, Eide also had the following to say:

The obligation to respect requires the State, and thereby all its organs and agents, to abstain from doing anything that violates the integrity of the individual or infringes on his or her freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy the basic needs.57

It is incumbent on the Uganda Government to provide access to healthcare facilities and to health-related information for the individual. At the same time, it is Uganda’s obligation not to infringe on an individual’s health, in the ‘field of environmental health

52.UN Doc. A/60/348, at 7.

53.The right to health is violated when government agents torture people physically or mentally, as it has been reported in many instances by the Uganda Human Rights Commission Reports.

54.For instance, a number of investors (international or national) may dispose of industrial wastage that unless caution is taken, can be hazardous to people’s health.

55.See, Bothe Michael, Les Concepts Fondamentaux du Droit à la Santé: Le Point de Vue Juridique, in LE DROIT À LA SANTÉ EN TANT QUE DROIT DE L’HOMME (René-Jean Dupuy ed., 1979), at 14.

56.See, C.A.B. TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW

312 (1999).

57.See, A.EIDE,THE NEW INTERNATIONAL ECONOMIC ORDER AND THE PROMOTION OF HUMAN

RIGHTS (1987), UN Doc.E/CN.4/Sub.2/1987/23, July 1987, § 67.

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and physical integrity.’58 In short, Uganda’s obligation to respect the right to health and the underlying determinants of health involves respect for equal access to healthcare facilities by all people, especially in remote and unprivileged areas,59 respect for equal access to family planning services and pre and postnatal care, respect for equal access to water and sanitation, abstention from environmental and industrial policies detrimental to health, abstention from traditional practices detrimental to health and information on such practices, non-interference with the provision of healthcare, healthcare related services, such as water and sanitation, or information on water and sanitation and non-interference with environmental and industrial health-related information.

Uganda’s legal obligation not to discriminate in the provision of access to healthcare and underlying determinants of health also includes actions that have the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health. Discrimination can occur mainly if all people do not equally access safe and portable water, adequate sanitation, a healthy environment, health education, adequate supply of food, nutrition, and adequate housing. The obligations to protect and to fulfil are of a positive nature. Both require the Uganda Government to take certain measures to protect and assist its people realize their rights. According to Eide, the obligation to protect requires the State and its agents to take ‘measures necessary to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual—including the prevention of infringement of the enjoyment of his material resources.’60 Hoof Van is more specific when he argues that the obligation to protect means ‘to take steps—through legislation or otherwise—which prevent or prohibit others (third persons) from violating recognized rights or freedoms.’61 Uganda is under a legal obligation to protect citizens against certain practices imposed by private healthcare providers, traditional healers, in order to safeguard the quality and

58.TOEBES, supra note 56, at 313.

59.The reporting practice of ICESCR mentions people living in remote rural areas (the minorities and indigenous populations, women, children, the elderly, the mentally ill, disabled persons, persons with HIV/AIDS, and drug and alcohol addicts) as those usually denied access to healthcare facilities. See, TOEBES, supra note 56, at 116.

60.EIDE, supra note 57.

61.See, G.J.H. Van Hoof & K.D.V. Mestdagh, Mechanisms of International Supervision, in

SUPERVISORY MECHANISMS IN INTERNATIONAL ECONOMIC ORGANIZATIONS (P. Van Dijk ed., 1984), at 106. See also, Article 12 of the ICESCR; General Comment No. 3, 1990, ¶¶ 3, 4, and 7; and the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17, ¶¶ 17 and 18.

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the accessibility of the healthcare services provided.62

However, most important of all, Uganda has a core legal obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each right enunciated in the Covenant, including essential primary healthcare.63 The following sum up the core legal obligations of Uganda’s right to health, according to General Comment No.14:

(a)obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;

(b)obligation to ensure access to the minimum essential food which is nutritiously adequate and safe, to ensure freedom from hunger to everyone;

(c)obligation to censure access to basic shelter, housing and sanitation, and an adequate supply of safe and clean water;

(d)obligation to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;

(e)obligation to ensure equitable distribution of all health facilities, goods and services; and

(f)obligation to adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as rights health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan are devised , as well as their content, shall give particular attention to all vulnerable or marginalized groups.64

It is Uganda’s legal obligation to establish an integrated health system responsive to local priorities, according to the report on the Uganda Mission by the UN Special Rapporteur on the right to health.65 Such a system should be flexible enough

62.TOEBES, supra note 56, at 328.

63.See, CORE OBLIGATIONS:BUILDING A FRAMEWORK FORECONOMIC,SOCIALAND CULTURAL

RIGHTS (Chapman and Russell eds., 2002), especially the different articles on the minimum core obligations under each of the rights recognized in the Covenant. See also, D. Bilchiz, Giving Social- Economic Rights Teeth: The Minimum Core and its Importance, 118S.AFR.L.J.(2002), at 484 (defending the principle of minimum core obligation based on the moral principles of priority and basic needs).

64.See, General Comment No.14, ¶ 43.

65.See, Report of the Special Rapporteur, supra note 51, ¶¶ 55, 59.

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to cater for neglected diseases, outbreaks of communicable diseases (e.g. HIV/AIDS, tuberculosis, and malaria).

C. Resource Constraints and Progressive Realization of the Right to Health

It is true that the right to health cannot be realized immediately and overnight because of resource constraints and time needed to put the infrastructure in place. However, the progressive realization principle in the ICESCR recognizes the limits of availability of resources. The ICESCR cannot absolve Uganda for not advancing the right to health on grounds of limited resources. It imposes an immediate obligation on Uganda to ensure that it constantly moves towards improving the health and well-being of its people. Uganda must take deliberate, concrete and targeted steps towards the full realization of the right to health of the people under its jurisdiction. Many advocates of the right to health place great emphasis on developing indicators and benchmarks as tools to monitor and account for the progressive realization of the right to health. General Comment No. 14 stresses the same.66

The UN Special Rapporteur on the right to health is very explicit about the use of indicators in his 2003 and 2004 reports to the Committee on Human Rights and the General Assembly. His 2006 report to the Human Rights Commission is particularly important for it sets out a framework for considering health indicators from a human rights perspective. He lays emphasis on the importance of health indicators, but warns that they should be disaggregated on grounds such as sex, race and ethnicity. He specifies three types of indicators: structural, process and outcome.67

D. Obligation to Seek International Assistance

It is Uganda’s obligation to seek international assistance and cooperation in order to access more resources needed to achieve the progressive realization of the right to health.68 Nevertheless, other states have an international obligation under articles 55

66.See, General Comment No.14, ¶¶ 57-58.

67.See, Reports of the Special Rapporteur on the Right to Health to the General Assembly (2003) A/58/427; (2004) A/59/422; and to the Commission on Human Rights (2006) E/CN.4/2006/48.

68.See, P. Hunt, Using Rights as a Shield, in 6 HUM. RTS L. & PRACTICE (2002) (encouraging developing countries to use the Covenant to demand international assistance from the developed States).

See also, O.FERRAZ &J.MESQUITA,THE RIGHT TO HEALTH AND THE MILLENNIUM DEVELOPMENT GOALS

IN DEVELOPING COUNTRIES: A RIGHT TO INTERNATIONAL ASSISTANCE AND COOPERATION 12 (2006); S.

SKOGLY, BEYOND NATIONAL BORDERS: STATES’ HUMAN RIGHTS OBLIGATIONS IN INTERNATIONAL

COOPERATION (2006), at 17-18 (observing that although the debate on whether there is a right to

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and 56 of the UN Charter, to cooperate in the development and realization of all human rights.69 In particular, in order to abide by the international obligation in relation to article 2(1) of the ICESCR, states parties have to aid Uganda in promoting the right to health whenever Uganda puts that request to them. They are under an obligation at all times not to impose embargoes or similar measures that may restrict Uganda’s supply of adequate medicines and medical equipment (in line with General Comment No. 14).70 What if those other countries also have resource constraints and hence may not be in position to help Uganda? To such a question, one could argue, like UN Special Rapporteur Passim, that these countries should endeavour to help Uganda realize at least the minimum core obligation relating to the right to health as a matter of duty of international assistance and cooperation.71

The donor community deserves credit for supporting Uganda’s health sector. The Health Policy Statement 2003/04 acknowledged that donors contributed 81 per cent of the 2003/04 development health budget that is managed through a sector-wide approach. However, as noted by the UN Special Rapporteur on the right to health, there is still a ‘wide gap between the cost of a national minimum health care package in Uganda and the funds that are presently made available for this purpose.’72 According

international assistance and cooperation is not yet concluded, all countries, rich and poor, have obligations in their foreign relations to the extent that they influence the enjoyment of human rights for individuals in other countries).

69.For more detailed information on extra-territorial, trans-boarder or trans-national obligations, see S. Skogly, The Obligation of International Assistance and Cooperation in the International Covenant on Economic, Social and Cultural Rights, in HUMAN RIGHTS AND CRIMINAL JUSTICE FOR THE

DOWNTRODDEN: ESSAYS IN HONOUR OF EIDE (Morten Bergsmo ed., 2003); R. Künnemann,

Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights, in

EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES (F. Coomans & M.T. Kamminga eds, 2004); Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, INTERSENTIA (2003); and Koen De Feyter, World Development Law, INTERSENTIA (2001).

70.General Comment 14, ¶ 39 concludes: “… States parties have to respect the enjoyment of the right to health in other countries and to prevent third parties from violating the right in other countries

... States should facilitate access to essential health facilities, goods and services in other countries, whenever possible, and provide the necessary aid when required … to ensure that the right to health is given due attention in international agreements … that their actions as members of international organizations take due account of the right to health. Accordingly, States parties that are members of international financial institutions pay greater attention to the protection of the right to health in influencing the lending policies, credit agreements and international measures of these institutions.”

71.See, D. Lyons, The Correlativity of Rights and Duties, 4 NÔUS (1970), at 44-55. If the recipient countries have a right to international assistance and cooperation, then the more developed nations have a corresponding duty.

72.See, Report of the Special Rapporteur, supra note 51, ¶ 74.

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to the Health Sector Strategic Plan, US $28 per person per year is needed to finance Uganda’s national minimum health care package. This is too little according to the WHO’s Report of the Commission on Macroeconomics and Health which puts US$30 to $40 per person per year as minimum financing to cover essential health interventions for a low-income country like Uganda.73 Uganda’s public expenditure from both the Government and donors is only US$9 per person per year, in addition to US$7 per person per year from households and employers.74 No wonder a UN report described Uganda as ‘a basket case in chronic under-financing of the health sector.’75 This under- funding of the health sector stifles the HSSP priorities, including reproductive services, human resources and health infrastructure.

E. Freedoms and Entitlements

Like other human rights, the right to health contains the freedom to make decisions about one’s own health’76 including the right to consent before medical treatment and the right not to be discriminated against. It contains entitlements that include the existence of ‘a health system protection,’77 which provides a minimum level of access to water and sanitation, and health care.

F. Available, Accessible, Acceptable and Quality

The right to health analytical framework requires that all health care services, goods and facilities be made available, accessible and culturally responsive to the health needs of the people concerned. In most African countries, including Uganda, information on sexual and reproductive health is largely unavailable. Hunt et al have explained that it is the practice in many countries for sexual and reproductive services to be ‘geographically inaccessible to communities living in rural areas, or it is provided in a form that is not culturally acceptable to indigenous peoples and other non-dominant groups.’78 Accessibility and the cost of health care services may be an issue in

73.See, WHO, REPORT OF THE COMMISSION ON MACROECONOMICS AND HEALTH (2001), ¶ 16.

74.Id.

75.OFFICE OF THE UN RESIDENT COORDINATOR, UGANDA: PROMISE, PERFORMANCE AND CHALLENGES: ATTAINING THE PEAP AND MDGS 50 (2003).

76.See, POTTS, supra note 6, at 4.

77.Id.

78.See, Paul Hunt et al, The Right to the Highest Attainable Standard of Health, in OXFORD

TEXTBOOK OF PUBLIC HEALTH (R. Detel et al eds, 2009), at 344.

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determining the extent to which women in poor conditions can seek care.79 It is also true that the quality and outcome of care can influence women’s decision whether or no to seek it. Therefore, all the conditions are vital in tackling maternal and infant mortality and in the general promotion of the right to health.

G. Non-discrimination, Equality and Vulnerability

The right to health analytical framework is particular on the issue of non-discrimination, equality and vulnerability. All policies, programmes and projects that aim for the right to health must avoid discriminatory tendencies. As Hunt et al have pointed out, ‘stigmatization and discrimination heighten people’s vulnerability to ill health.’80 In the absence of accurate information about a disease, myths, misconceptions and fears may accrue around victims who eventually shun ‘diagnosis, delay in seeking treatment and hide the diseases from the family, employers and the community at large.’81 Victims of neglected diseases can end up becoming physically disabled. There are socioeconomic consequences for the victims of discrimination and stigmatization, which the WHO has indicated, may include ostracism, rejection and abandonment.82 A study carried out by Coreil et al concluded that women disfigured by lymphatic filariasis sometimes experience more social discrimination than men.83 The state has a duty to ensure that there are health-related laws and policies to fight discrimination and unequal treatment.

H. Active and Informed Participation

The right to health analytical framework requires that all stakeholders in health matters be given a chance to participate actively and in an informed manner in all health policy- making processes. The right to participation is recognized in international human rights law as one of the core human rights principles.84 Hunt et al have argued that ‘while it

79.UNITED NATIONS MILLENNIUM PROJECT, WHOS GOT THE POWER? REPORT OF THE TASK FORCE ON CHILD HEALTH AND MATERNAL HEALTH (2005).

80.See, supra note 78, at 9.

81.Id.

82.See, WHO, A HUMAN RIGHTS APPROACH TO TUBERCULOSIS 12 (2001).

83.See, COREIL ET AL, SUPPORT GROUPS FOR WOMEN WITH LYMPHATIC FILARIASIS IN HAITI

42 (2003).

84.See, Article 25 of the International Covenant on Civil and Political Rights; General Comment 25; Articles 8 (on Freedom of Association), 13 (on Education), and 15 (on Cultural Life) of the International Covenant on Economic Social and Cultural Rights. The 1986 UN Right to Development and

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is not suggested that affected communities should participate in all the technical deliberations that underline policy formulation, their participation can help to avoid some of the top-down, technocratic tendencies often associated with old-style development plans and policy implementation.’85

Participation builds people’s capacity to demand their rights and positively influences the enjoyment of the right to health.86 Provisions must be made to sensitize the masses and enlist their support. Village health teams in Uganda are a good example of effective participation in the promotion of the right to health. The teams are formed by villagers who receive basic training and are deployed to help in the identification of local health needs and form grassroots delivery mechanisms, including giving advice and the administration of medicine where possible. However, the government must provide resources and support to these vehicles in order to ensure effective participation.87 Front Line (the International Foundation for the Protection of Human Rights Defenders) argues that:

[i]ndividuals, groups and communities hold a human right to be involved in decision-making, planning and implementation processes affecting their ESCR and are entitled to information that enables the decision-making process to be meaningful. It follows that states and non-state actors, particularly development agencies have a duty to enable people affected by a development activity to participate in ways capable of transforming their social, political and economic conditions.88

I. Empowerment

The outcome of empowerment is self-determination and full actualization even in matters of health. People should able to take control of their health. Empowerment as a constitutive element in a human rights-based accountability for health can be based on Sen’s model of substantive freedoms, which are both the primary end and the means of development.89 He looked at substantive freedoms as involving a process in which

the 1993 Vienna Declaration and Programme of Action have clear provisions on participation.

85.See, Hunt et al, supra note 78.

86.Id.

87.Id.

88.See, The Right to Participation, available at <http://www.frontlinedefenders.org/node/701> (last accessed 18 August 2009).

89.See, AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999).

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freedom of action and decisions must be allowed; and where people have opportunities and capabilities, for instance, to escape premature mortality, preventable morbidity or involuntary starvation,90 all of which need empowerment if people are to achieve substantive freedoms to live a life they have reason to value.91

J. Monitoring and Accountability

According to Yamin, accountability is a central feature of any rights-based approach to health because it converts passive beneficiaries into claims–holders and identifies states and other actors as duty-bearers that can be held responsible for their discharge of legal, and not merely, moral obligations.92 She argues that while national authorities have the primary obligation to realize the right to health, ‘donor states and other actors have parallel obligations’93 and should be held accountable. She further maintains that both ‘[g]overnments and donor states alike should be held accountable for ensuring structural and institutional measures to prevent de facto discrimination in health programmes, including the use of disaggregated indicators that provide incentives to consider distributional effects and not merely aggregate advances.’94

Hunt et al have highlighted that ‘accountability mechanisms provide rights- holders (individuals and groups) with an opportunity to understand how duty-bearers have discharged their obligations, and it also provides duty-bearers (e.g ministers and officials) with an opportunity to explain their conduct.’95 Thus, monitoring and accountability encourage the effective use of resources, since they help to ‘ensure that health policies, programmes and practices are meaningful to those living in poverty.’96

In summary, any effort aimed at the promotion of the right to health must be respectful of the above ten elements of the right to health analytical framework. Hunt et al caution that ‘states are required to conform to the key features as a matter of binding law. Moreover, they are to be held to account for the discharge for their right- to-health responsibilities arising from these legal obligations.’97

90.Id.

91.Id., at 18.

92.See, A.E. Yamin, Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health, in 10 HEALTH & HUM. RTS J. (2008), at.1.

93.Id.

94.Id., at 13.

95.Hunt et al, supra note 78, at 347.

96.Id., at 338.

97.Id.

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IV. APPLYING A HUMAN RIGHTS-BASED ACCOUNTABILITY FOR

HEALTH IN UGANDA

A human rights accountability to promote health can be considered at both the macro and micro levels. First of all it is important to realize that health is a human right with its foundation in international human rights law which regulates States’ obligations and people’s entitlements. Thus, all States are obliged to promote health as a human right under international human rights law, which bases itself on international treaties, which the States sign and ratify, and on international conventions and various mechanisms that operate in the UN and at the national level.98

At the macro level, a human rights accountability for health prescribes that Uganda provides adequate funding for health; that Ugandapromotes non-discrimination and equity in accessing health facilities; provides communication, transport, roads and ambulances; controls communicable diseases such as tuberculosis, Malaria, and HIV/AIDS; that Uganda tackles environmental issues such as air pollution (due to dust, noise, industrial toxic gas); Uganda takes seriously the issue of neglected diseases; that Uganda fights maternal and infant mortality; that Uganda enacts a health law; creates laws regulating the procurement and distribution of drugs and other medical equipment; cares for the elderly; trains, recruits and retains health professionals in the country; and that Uganda promotes all other determinants of health.

The micro level is when human rights are considered as a conceptual system that analyses and guides the process of realizing the right to health, other than naming and shaming States that violate human rights. At the micro level, a human rights accountability for health adopts a critical evaluation of the relationship between the healthcare providers and the patients. It requires Uganda to examine the efficacy of the health laws in addressing such matters as discriminatory practices in the provision of healthcare services; the approach requires Uganda to provide accurate healthcare information to the people, about when and where to turn for appropriate and timely healthcare; and at micro level delays in receiving care at the healthcare facility. It tackles rights-based problems, including the dismissive attitude of healthcare providers, the high market prices for hospital equipment; healthcare insurance and traditional health care providers.

The human rights-based accountability for health calls for all stakeholders in the promotion of the right to health to consider in the highest esteem, both the process and human interactions that are so crucial to the full realization of this right. Thus,

98. See, L.P. Freedman, Using Human Rights in Maternal Mortality Programs: From Analysis to Strategy, in 75 INTL J. GYN. & OBST. (2001), at 51 & 53.

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dignity in health concerns both being free from avoidable diseases and the way individuals, communities and societies engage in the process of obtaining and maintaining the highest attainable standard of health.99 At both the macro and micro levels, human rights principles guide the analysis, design, implementation, monitoring and evaluation of health-related programmes.

V. THE RIGHT TO HEALTH IN UGANDA

The right to health in Uganda is provided for under the Uganda Poverty Reduction Strategic Plan (PRSP) that was first designed in 1999, as directed by the World Bank and IMF. A desk review of Health Sectors, I and II in the Uganda PRSP reveals a considerable amount of information about the measures taken to implement the right to health in Uganda. On the one hand, Uganda has registered tremendous progress in the design and implementation of programmes, which contribute to the full realization of the right to health. For example, there was a reduction in the HIV prevalence rate from 6.8% in 1999 to 6.2% in 2000. There was also an increase in the number of health facilities. The abolition of user fees in 2001 also led to an increase in health service utilization, especially the out patient department (OPD) attendance from 41% in 1999 to 84% in 2002.

The Uganda Government has also made remarkable progress in its campaigns to control malaria, TB, and measles. Despite improvements, problems remain. Thus, infant, child and maternal mortality rates are still high. A case study done by the Uganda Debt Network in 2003 revealed that infant mortality among the poor is 80% higher than among the non-poor,100 and it remains high now. The quality of healthcare service-delivery is still poor due to lack of qualified staff and there is a shortage of drugs, especially in rural remote areas. The poor are not able to access health facilities. Poor women are less able to access care for the problems associated with childbirth. Generally, the poor outlying rural districts have shown little improvement in basic social and economic conditions. In many areas, particularly the north that was ravaged by conflict, the essential facilities that support livelihoods have still not been restored.101 Investment in social sectors such as education and health, have failed to improve the

99.Id., at 55.

100.See, Uganda Debt Network, The Poverty Reduction Strategy Papers (PRSP) and Resource Allocation to the Health Sector in Uganda (Discussion Paper No. 7, April 2004), available online at <www.eldis.org/static/Doc16789.htm>

101.See, Report of the Special Rapporteur, supra note 51, ¶ 51.

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overall level of service delivery.102

The Uganda Poverty Eradication Action Plan (PEAP) is widely praised as a comprehensive and realistic poverty-reduction strategy, grounded in the Medium-term Expenditure Framework (MTEF). However, the strategy does not qualify to be pro- poor, as it does not properly follow a human rights-based approach. Despite its recognition of improved health as the key to poverty reduction, ‘the basic health services as presented in the primary health care package and disease control programmes are not poverty focused and do not focus on the poor and most vulnerable members of society.’103

The HSSP ought to have disaggregated data and a detailed discussion on the causes of health inequality and the financial barriers that hinder the poor from accessing healthcare services. It must also articulate the issues of non-communicable diseases and the concerns of disabled persons among the poor communities. The PEAP does not consider health as a fundamental human right. No wonder, therefore, there are no measurable indicators to monitor short-term progress in the implementation of the right to health. A critical evaluation of the PRSP health sector reveals a limited discussion of financial barriers to care, the impoverishing impact of catastrophic illnesses like HIV/AIDS, or accidents. It also reveals the lack of focus on people with disabilities often the poorest of the poor; no discussion on non-communicable diseases such as those caused by smoking,104 together with a failure to address the problem of neglected diseases.

A human rights-based accountability for health obliges the primary healthcare policy to provide for a clear outreach framework for reaching all the communities especially those lacking adequate health facilities. It must provide for the training of healthcare workers, the construction of health units in underserved areas, the development of health services at the community level and the facilitation of effective outreach. This would create an effective platform for launching prevention and control messages and approaches. However, there seems to be little evidence of pro-poor targeting or attempts to adopt a national strategy to meet the needs of the poorest in the health component of the Uganda PRSP. The strategy to improve health services in rural areas in Uganda is not yet viable. Although the HSSP has registered some progress in the provision of health services and the improvement in health infrastructure, the Plan has not achieved one of its primary objectives, that is, achieving 80% of the entire

102. See, KREIMER ET AL,UGANDA POST-CONFLICT RECONSTRUCTION:COUNTRY CASE STUDY

(2000).

103.See, Uganda Debt Network, supra note 100.

104.Id., at 9.

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population having access to health facilities by 2005 was not achieved. Not every sub- district in Uganda (serving approximately 100,000 people) has a health centre staffed by a doctor with a small theatre for operations such as caesarean sections and hernia repair.105

Generally, the health services are still poor especially in remote areas due to understaffing, poor terms and conditions of work, and low salaries which are sometimes delayed. While the trained staff concentrate in urban centres, they lack supervision and because of this, their quality of service is below the average standard.106 To reduce discriminatory tendencies in the health sector, there is a need to make reproductive health services accessible by all people in rural areas. The ministry of Health should provide for an efficient emergency maternal referral system at the health sub-district level. It should also facilitate village health units to render delivery care services to the women who cannot afford hospitals. To achieve this, the HSSP must consider incentives to train and retain skilled health workers107 at these hard-to-reach health units. It must also increase efforts to sensitize communities on the value of the delivery care.

Although it is true that the HSSP in the Uganda PRSP faces a number of challenges (mainly, a gap in funding due to the expenditure ceiling imposed on by MFET and inadequate human resources),108 there is a need for intensive health promotion, education and coordination by all stakeholders. In a country like Uganda where health insurance companies are just coming onto the market, there is need to control those who might be inclined to exclude persons such as the elderly, the disabled, or others with certain diseases, or those who cannot afford to pay, since these companies are after maximizing profits. Charles Bwogi reported that many insurance companies had been excluding coverage for people living with HIV/AIDS despite the fact ‘insurance policies are meant to offer social-health protection to all groups of people.’109 A number of healthcare insurances have appeared in Uganda, including Microcare; OracleMed, a South African-based company; and Health Maintenance

105.Id.

106.See, UPPAP II.

107.Id. The UPPAP II report highlighted lack of adequate qualified staff generally, mainly doctors, anaesthetic staff and laboratory technicians.

108.Id., at 11.

109.See, C. Bwogi, HealthCare Insurance Schemes Taking Shape, THENEWVISION, September 28, 2005 (citing Dipankar Mahaalanobis, Managing Director of Microcare).

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Organizations (HMOs) like IAA and AAR who offer health insurance products.110 The current Insurance Act,111 which created the Uganda Insurance Commission that regulates health insurances, does not have provisions for regulation of the Health Maintenance Organizations (HMOs).

Unlike the proper insurance companies, the HMOs do not have to deposit one billion Uganda shillings with the Uganda Insurance Commission before registration. The implication of this is that in the case of a big claim or an act of insolvency on part of the HMOs, the client loses out completely.112 Uganda should revise its insurance legislation to include provisions that govern the operation of HMOs, otherwise they should operate as proper insurance companies. The New Vision of 7 June, 2006 reported that the long-awaited social health insurance scheme (SHI) was to start operating in July 2007. However, as it was to target employees of the formal and informal sectors first, the poor and most vulnerable would be left out. According to Dr. Francis Runumi, Commissioner for Health Planning, the social health insurance cover was ‘to start with those who earn salaries from either the formal or informal sector.’113 So could it possibly be maintained that this health insurance scheme is discriminative? Despite the potential environment for the protection and promotion of the right to health in Uganda, the truth of the matter is that a great deal needs to be done before it can be claimed that a right to health exists.

A. The Uganda Ministry of Health and the Right to Health

The Uganda Ministry of Health has its mission as ‘to provide a network of functional, efficient and sustainable health infrastructure for effective health care service delivery to all the people of Uganda, thus bringing about the full realization of the right to health. However, there are serious concerns as to whether this mission is being realized. Among the various reasons is the fact that the Ministry of Health has not fully considered a human rights-based accountability for healthcare in Uganda. This

110.The HMOs have been operating as risk-bearing entities, insurers and healthcare providers whereby they take fees from the clients which they use to pay medical expenses, while retaining what is left at the end of the year as profit to clinics that agree to provide unlimited services for an annual fee to community-based financing schemes.

111.Cap. 213.

112.See, Bwogi, supra note 109.

113.Dr. Francis Runumi, the Commissioner for Health Planning at the Ministry of Health announced that the new scheme would begin on 1 July 2007. He made this announcement on Monday, 5 June, 2006, while presenting a paper on the principles of social health insurance to a stakeholders meeting in Mbale, Uganda.

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accounts for the continued existence of discrimination and stigma among the poor members of society, most especially those suffering from neglected diseases. The poor and the most vulnerable are far from realizing their right to health since not many are yet able to access adequate medical care. The construction of new health centres, and the rehabilitation and upgrading of existing health facilities has not yet been accomplished to satisfy the demand.

The very poor state of the roads up-country worsens accessibility to health units especially when it rains heavily. There are very limited ambulance services, if any at all, to transport the seriously ill patients to higher levels of care. Among the various reasons for this continued occurrence is the lack of sufficient funds available to the Ministry of Health to execute its obligations, as has already been seen above. There is, however, a serious reason accounting for the lack of sufficient funds to the ministry of Health. The Ministry of Finance, Planning and Economic Development (MFPED), supported by IMF and the World Bank, controls the aid that goes to the health sector. It urges that since Uganda depends much on donor aid, further increases in aid will lead to an overvaluation of the Uganda currency and hence the ‘Dutch disease’ effect of aid which will result in inflation, lower growth, and inhibit development of the tradable goods sector.114

In order to prevent this situation, the MFPED places a ceiling on budget expenditures to any ministry and to donor aid to Uganda in general. However, this is an unfounded fear as regards the Ministry of Health expenditure. In fact ‘growth in budget expenditures are necessary to achieve the country’s commitments under the PEAP,’ and moreover, the Ministry of Health can properly absorb more aid without causing inflation in Uganda, since it uses the funds overseas to import drugs and medical equipment which are not manufactured in Uganda. It needs more funds to set up more health facilities in order to combat crises such as HIV/AIDS and other infectious diseases. Sachs has argued—and I concur—that:

Artificial ceilings on health expenditure, in the name of macroeconomic stability, are a false economy. There is no true stability without health, and the Ugandan economy can fully absorb [any] massive increases in foreign grants for health than [what the] donors are likely to make available.115

114.For a detailed explanation of the ‘Dutch Disease,’ see C.S. Adam & D.L. Bevan, Aid, Public Expenditure and the Dutch Disease, 2003, available online at <http://econwpa.wustl.edu/ eps/dev/papers/0409/040927.pdf> (accessed December 18, 2005).

115.J.D. Sachs, Open Letter to the Government of Uganda, THE NEW VISION, 23 May 2002.

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One might conclude that ‘the IMF, World Bank and Ugandan Finance Ministry have decided that protecting against inflation is more important than protecting people’s lives.’116 The Uganda Debt Network once reported that there were instances where the donors’ funds were rejected by the MFPED, citing macroeconomic concerns.117 However, it is imperative to assert that the link between health status and economic growth is very strong. As Bloom says, ‘a healthy population leads to a productive labour. When people are healthy, they increase their life cycle savings for further investments.’118 The Uganda Government should address the shortage of funds to the health sector by increasing domestic resource mobilization and by appealing to bilateral donors to increase their support to the Ministry of Health. The World Bank cancelled Uganda’s debt worth US$3.764B (about shs. 7 trillion). This is a good practice which should be emulated by other donors. It is assumed that a portion of that money will go a long way in uplifting the standard of health care services in Uganda.

B. Monitoring and Evaluation

The HSSP in the Uganda PRSP used mortality rates and identified process indicators: the DPT3 immunization rate; the percentage of health centres with qualified staff; the percentage of health units without stock outs; and perception of services. It is very important the Government of Uganda makes all efforts to find out whether or not the health strategy benefits the poor and the most vulnerable. The monitoring indicators used to measure progress do not measure the impact of the strategy on the poor people or regions. For instance, the indicators used (e.g. the per capital level and age-specific outpatient department utilization; the percentage of children under one year with DPT3 immunization according to schedule; and the proportion of health centres with minimum staffing norms) do not actually reveal whether the poor and the most vulnerable members of society are benefiting or not from the health strategy.

The Government needs to set up indicators that will measure the percentage of vulnerable people affected by its health strategy. It should aim at having statistical data on the percentage of the population affected by any health intervention in a final report distributed to all stakeholders periodically. Such a report would provide the basis for

116.See, Omaswa, quoted in W. Nyamugasira & R. Rowden, New Strategies, Old Loan Conditions, 2002, available at <http://www.brettonwoodsproject.org/topic/adjustment/ Ugandaanalaysis. pdf> (accessed December 18, 2005).

117.See, Uganda Debt Network, supra note 100, at 8.

118.See, D.E. Bloom, D. Canning, and J. Sevilla, The Effect of Health on Economic Growth: Theory and Evidence (National Bureau of Economic Research Working Paper No. 8587, 2001).

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policy reform and the improvement of health intervention to improve the health situation of the most vulnerable. But in order to monitor Government progress in this direction, it is necessary to have a ‘right to health unit’ or a body that constantly advises, guides and reminds the Government and all the development partners of their commitment to the realization of the right to health in Uganda. The right to health unit that was launched by the Uganda Human Rights Commission in January 2007 is highly commendable and should be supported by the Uganda Government and the international community.

C. Accountability Mechanism

In a human rights-based accountability, rights imply duties and duty demands accountability. This approach identifies duty bearers (the State) who are responsible for ensuring that the right to health is realized. The approach also identifies the poor and the most vulnerable as the rights claimants who hold the States accountable for any failure in their duties. Accountability procedures extend to the recipient governments as well as to the donor community, intergovernmental organizations, international NGOs and to transnational corporations whose actions can violate or promote the right to health of the poor.119

There are a number of proper and effective mechanisms to hold the duty bearers (including donors), accountable for failure to secure programmes that contribute to the progressive realization of the right to health. The Paris Declaration on Aid Effectiveness provides a good example that should be emulated in this regard. At the international level, it established mechanism whereby donors and recipient governments are held mutually accountable to each other.120 At the national level, the Paris Declaration encourages partners and donors to take a joint mutual assessment of the progress made in the implementation of the agreed commitments on aid effectiveness using local mechanisms such as consultative groups.121

In Uganda, there are both judicial and quasi-judicial means that the poor could use to pressurize the duty bearers to bring about progressive realization of the right to

119.See, Paris Declaration on Aid Effectiveness: Ownership, Harmonization, Alignment, Results and Mutual Accountability (2005). This Declaration created strong mechanisms for mutual accountability.

120.Id., ¶ 9.

121.Id., ¶ 50.

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health. The judicial means include the national courts of law,122 while the quasi-judicial include the Uganda Human Rights Commission, human rights organisations (like Human Rights Network (HURINET), the Uganda Women Lawyers Association (FIDA- U)) and political devices like Parliament. However, there is not much evidence in Uganda to show that the poor are using these mechanisms to hold the State and other duty bearers to account for the little progress made over the years in bringing about the full realization of the right to health. Documented court cases are not available yet. There are very few cases, if any, reported by the Uganda Human Rights Commission regarding the compensation of victims whose right to health is violated, implying that there are no such incidences. An accountability mechanism is not for blame and punishment only. On the contrary, it can lead to the discovery of what does and does not work and why, thereby identifying where improvement is needed.123 Uganda needs to set up a right to health accountability mechanism that will establish which health policies and institutions promote the right to health of the poor and which do not.

Furthermore, there is an urgent need to educate people about their human rights in general and the right to health in particular. They should be made aware of the available complaint mechanisms to resort to in case their human rights are violated, including the right to health. Health education needs to be properly streamlined, and there is need to provide information on prevailing health problems and measures taken to prevent and control them.124 It should also have health activities for parents to help them ensure the proper development of their children. It should also have health education for young people aimed at exposing the dangers of alcohol and drug abuse as well as eating disorders.125 Moreover, health education is found to be one of the most

122.The Constitution of the Republic of Uganda provides for the enforcement of Rights and Freedoms by Courts. Article 50(1) says that any person who claims that a fundamental or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent court for redress, which may include compensation; and article 50(2) provides that any person or organization may bring an action against the violation of another person’s or group’s human rights. Article 50(3) provides that any person aggrieved by any decision of the court may appeal to the appropriate court, while clause (4) of the same article requires Parliament to make laws for the enforcement of the rights and freedoms under this Chapter (Chapter 4).

123.See, POTTS, supra note 6, at 5.

124.See, Guidelines, UN Doc. E/1991/23/ SUPPL. No. 3, at 105; UN Doc. E/C. 12/ 1994/W, QUESTION 25, at 14.

125.See, Second Report of the Federal Republic of Germany, UN Doc. E/1986/A/ASS.10, ¶

124.

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effective tools in the fight against HIV/AIDS.126 The curriculum for training health professionals should contain human rights education, including education on the right to health of both the health professionals themselves and those of the patients. It is argued that if health professionals know their human rights and those of the patients, they will be in a better position to contribute effectively to the promotion of the gradual realization of the right to health in Uganda.

Until recently, in Uganda, health education for adolescents, especially on sexual and reproductive health, has been very restricted. It is traditionally a taboo for parents to talk openly about sex in front of their children. Young people were normally left alone to discover by themselves all about this important aspect of human life. Such practices have resulted in a number of problems for the young (including teenage pregnancies that may result in unsafe abortion, early marriages, and street children), all of which have adverse implications for the right to health. The most affected by this lack of sex education are girls and women who become vulnerable to violation from men.

D. Participation

Active participation is one of the major principles in a human rights accountability to promote the right to health. All the stakeholders must take an active part in both the design and implementation of a healthy strategy that affects their lives. It is imperative that any effort to bring about the progressive realization of the right to health considers the importance of achieving health-related objectives and the process by which such objectives are achieved.127 In the Uganda HSSP, the poor do not actively participate in the design, implementation or monitoring of the process aimed at bringing about the realization of the right to health ‘even though UPPAP reports suggest that Health Unit Management Committees (HUMCs) can be used to ensure accountability and monitoring by the community.’128 In this regard, the health component of the Uganda PRSP is discriminatory as far as the right to health of the poor is concerned. Thus, there exists a serious violation of the right to health of the poor.

126.Representative of Netherlands, UN Doc. E/C. 12/1989/SR.15 ¶ 59. The importance of health education for the people was emphasized a long time ago in history. Sigerist maintains that the French philosophers, for example, recommended health education for the people. See, H.E. SIGERIST, MEDICINE AND HUMAN WELFARE 80 (1941); G. ROSEN, A HISTORY OF PUBLIC HEALTH 109 (1993).

127.See, REPORT OF THE UN SPECIAL RAPPORTEUR ON THE RIGHT TO HEALTH, UN DOC A/60/348, submitted in accordance with Commission Resolution 2005/24, at 12.

128.See, Uganda Debt Network, supra note 100, at 8.

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VI. CIVIL SOCIETY AND A HUMAN RIGHTS ACCOUNTABILITY FOR

HEALTH IN UGANDA

Civil Society Organizations (CSOs) make a great contribution in any development work. They are very innovative in service delivery, building local capacity, and can efficiently and effectively advocate for the poor. However, to be able to play this constructive role in society, CSOs need to work hand in hand with the Government. However, the reality is that the Government of Uganda seems to pay little attention to the role of the private sector (profit and non-profit making), who are often the main health providers for the poor. This is shown by the fact that the Government provides little finance to the private sector. The CSOs should actively participate in the articulation, design and implementation of health-related programmes in Uganda. In Peru, for instance, Local Health Administration Committees (Comites Locales de Administracion de salud, CLAS) participate fully in government health programmes and contribute meaningfully to the progressive realization of the right to health.

Sometimes the challenging political situation in which CSOs operate becomes a hindrance to their work, because the government may perceive their work to be a threat to its policies. It is true that CSOs sometimes act on their own, or in opposition to government ventures, thereby causing tension and conflict. In such a situation, the work of CSOs has a limited impact on public policy and practice. However, it is time to realize that policy engagement can often have a greater impact than contestation and that policy advocacy by CSOs can spur more widespread benefits than their service delivery effort left alone.129 Research has shown that by getting the fundamentals right—assessing the context, engaging policymakers, getting rigorous evidence, working with partners, communicating well—CSOs can overcome key internal obstacles.130

VII. MULTINATIONAL FINANCIAL INSTITUTIONS AND A HUMAN RIGHTS ACCOUNTABILITY FOR HEALTH IN UGANDA

Based on the legal obligation of its members to respect, protect and fulfil the right to health, the policies of the World Bank ought to foster the progressive realization of the right to health. However, in Uganda, as we have already seen, funding the Ministry of Health is constrained due to macro-economic concerns of the World Bank and the IMF;

129.See, J. COURT ET AL, POLICY ENGAGEMENT: HOW CAN CIVIL SOCIETY ORGANIZATIONS

BE MORE EFFECTIVE? (2006), at 1, available at <www.odi.org.uk/Rapid> (accessed 4th July 2006).

130.Id.

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yet the World Bank is aware of the interconnectedness between the rights to health, education, and freedom from non-discrimination. According to a 2005 World Bank study:

Mothers’ illiteracy and lack of schooling directly disadvantage their children. Low schooling translates into poor quality of care for children and then higher infant and child mortality and malnutrition. Mothers with more education are more likely to adopt appropriated health-promoting behaviours, such as having young children immunized. Supporting these conclusions are careful analyses of household survey data that account for other factors that might improve care practices and related health outcomes.131

Sometimes the policies of the World Bank and IMF cause a shortage of funds in other areas that are determinants of the right to health, such as the education, clean water, sanitation and adequate housing, in which case these policies lead to a violation of the right to health. By supporting the Uganda PRSP that does not treat health as a human right, the World Bank and IMF also violate the right to health in Uganda. They ought to constructively criticize and influence the redesign of the PRSP to better articulate the right to health concerns.

However, some critics argue that the decision to fix a budget ceiling in Uganda is mainly political. They maintain that the perceived influence of the international financing institutions cannot be proved in Uganda. Nevertheless, they agree that these financial institutions support this policy (of budget ceiling).132 There is great need for these institutions to look beyond macroeconomic stability. The IMF should allow increase in concessional aid, in the form of grants that can have little impact on the macroeconomics of the country. Although, already, the IMF is supporting the call for donors to meet the 0.7% of their gross domestic product and provision of aid over a long-term, it should provide analyzes of how much additional aid could be absorbed by a low-income country such as Uganda, before upsetting a macro-economy of such a country. Otherwise, increased funding to the health sector should be a priority, if the

131.See, WORLD BANK,ENGENDERING DEVELOPMENT THROUGH GENDER EQUALITYINRIGHTS, RESOURCES AND VOICE (2005).

132.See, J. Odaga & P. Lochoro, Budget Ceilings and Health in Uganda, CARITAS UGANDA, January 2006, at iii.

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right to health is to be promoted in Uganda.133 The international trade practices of pharmaceutical companies may have an adverse effect on the realization of the right to health in Uganda. This is more so when these companies value market perspectives that regard health care as a commodity to be sold like any other good and not as a public good to be distributed to all, including the poor and most vulnerable.

VIII. THE WAY FORWARD

Uganda, like any other State, is obliged ‘to adopt legislation and to take other measures to assure that the health care providers do not disadvantage or exclude individuals or groups.’134 Uganda must design a comprehensive strategy to meet the obligation to fulfil the right to health. It is not enough, for instance, to arrest and imprison drug dealers without a proper education programme for the youth and the public about the dangers of using drugs. Toebes argues that the US authorities violated an obligation to fulfil the right to health.135 The authorities failed to respond adequately to an outbreak of cocaine use in the US by mounting a national health campaign to counteract drug-related morbidity and mortality but only imprisoned drug users which, inter alia, led to increased cases of HIV/AIDS in the prisons.136

Under the obligation to fulfil, Uganda should take measures necessary to ensure that each person within its jurisdiction has opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts.137 Uganda may implement this obligation ‘progressively’ and to the maximum of its resources.138 This means an obligation to progressively improve the level of healthcare facilities, such as dispensaries, clinics, hospital transport and services. It involves taking concrete and immediate steps to improve the healthcare infrastructure. From a human rights perspective, and according to WHO, the basic essentials of the right to health entail a number of elements. The first is primary healthcare, which includes at least education concerning health problems and the methods of preventing and controlling them. The second is the promotion of food supply and proper nutrition.

133.The Commission for Macroeconomics and Health 2001 recommended an increased flow of donor aid to low income countries, in a sustained, well-targeted, efficient, equitable and transparent manner.

134.See, TOEBES, supra note 56, at 328.

135.See also, B.X. Waltkins et al, Arms Against Illness: Crack Cocaine and Drug Policy in the United States, 2 HEALTH & HUM. RTS (1998), at 48-58.

136.See, TOEBES, supra note 56.

137.Id., at 332.

138.See, Article 2(1) ICESCR.

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The third one is the adequate supply of safe water and basic sanitation and, the fourth covers maternal and child health care, which includes family planning; immunisation against the major infectious diseases. Lastly, it includes the appropriate treatment of common diseases and injuries and the provision of essential drugs.139

In providing these healthcare services to people, the principle of non- discrimination must be upheld.140 That is, there must be equal access to health services by vulnerable groups, and the services ought to be sufficiently available and their quality has to be considered. Thus, the doctors and nurses must be skilled;141 and the equipment and drugs must be adequate for all the people in Uganda.142 Surprisingly, although discrimination may not be expressly rooted in the laws of Uganda, it is exercised in access to healthcare and to the underlying determinants of health (safe drinking water, housing, nutritious food, and a healthy environment).143 Failure to ensure access to safe and adequate drinking water in villages across the country; failure to provide family planning and pregnancy-related services to all women (article 12 of CEDAW) all constitute a violation of the right to health of the people.

Uganda must take action to improve the health situation of prisoners. The prisons are very congested, and have poor sanitation. Sometimes prisoners sleep on the floor without blankets. They have no opportunity for physical exercise and recreation, and often have poor nutrition. However, it may actually be hard to improve the prisoners’ health condition when that of the prison warders and other law enforcement agents like the police also leaves much to be desired. Crucially, any effort to improve the health situation should therefore be comprehensive enough to cater for all the

139.See, World Health Organization, Declaration of Alma Ata on ‘Health for All and Primary Healthcare strategies’ (International Conference on Primary Healthcare, Alma Ata, September 6-12, 1978). It is important to note that ‘definitions of the core and/or supplemental contents of the civil and political rights are being shaped continually. The search for similar clarity with respect to economic, social and cultural rights will continue to rapidly advance…’ See, S. Leckie, Violations of Economic, Social and Cultural Rights, in THE MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC,SOCIAL AND CULTURAL

RIGHTS (T.C. van Boven et al eds., 1998), at 60. The same message is quoted by TOEBES, supra note 56, at 288.

140.See, ICESCR, arts 2 & 3; CEDAW, arts 1 & 2.

141.See, UN Doc. E/1991/23, Suppl. No. 3, indicators 4(f)-(h) on proportions of population/pregnant women/infants having access to trained personnel for care.

142.See, UN Doc. E/C.12/1995/SR.14, ¶ 55; UN Doc. E/1986/4/Add. 9, at 9; UN Doc.E/1990/5/Add. 13, ¶ 107.

143.A similar form of discrimination happened in Serbia. See, FIDH,SERBIA: DISCRIMINATION AND CORRUPTION—THE FLAWS IN THE HEALTHCARE SYSTEM (International Fact-finding Mission Report to the Committee on Economic, Social and Cultural Rights in Application of the International Covenant on Economic, Social and Cultural Rights, May 2005), at 15.

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people including prison warders and other law enforcement agents. Measures to promote a healthy environment include those that conserve natural reserves, prevent deforestation and clean up chemical dumps.144 This is in line with the provisions of paragraph 2(b) of article 12, namely that ‘States parties have to improve all aspects of environmental and industrial issues that affect human health. However, most important of all for the Government is a serious political commitment to promote the right to health; such a commitment is manifested through national policies and legislation aimed at fostering the achievement of the progressive realisation of the right.145

The good thing is that there is already Government will in Uganda to promote the right to health of the people. In a speech at the 4th Conference of African National Human Rights Institutions held in Kampala in 2002, the President of Uganda showed that he was fully aware of the fact that in Uganda, just like in other African countries, the realization of the right to health is still elusive.146 He was convinced about the central role that issues of health play in any meaningful development strategy. He now and again reiterated his commitment to truly advance human rights and development through the promotion of good governance and the rule of law. He supported the advancement of basic economic, social and cultural rights, namely, the right to education, and showed interest in the promotion of the right to health and other determinants of health, such as clean water, adequate food and safe sanitation. He showed that he values the efficient use of available resources through proper planning and implementation, and the elimination of corruption by democratically empowering all the people to participate fully and actively in matters regarding their health and development aid generally.147

In a way, the President of Uganda appreciates the central importance of the State in building an environment that supports the adoption of a rights-based approach to the right to health in particular, and to development in general. However, efforts to implement Uganda’s commitments and obligations in relation to the right to health through national poverty-reduction strategies, national health policy and national health sector strategic plans have not been very successful as seen above.

However, in its commitment the Government must set up a timeframe in which to realize the right and also set up health-related indicators and measurable targets that

144.See, Second Report of Canada, UN Doc. E/1990/6/ADD.3, ¶ 23.

145.See, CEDAW, art. 2 (obliging States parties to take legislative measures to promote and protect the right to health). Article 3, on the other hand, recommends measures other than legislative ones.

146.See, Speech by His Excellence, Yoweri Museveni, at the Opening of the 4th Conference of African National Human Rights Institutions, Kampala, August 14, 2002, at 8 (available online at <www.nhr.net/pdf/African4thNhri>).

147.Id.

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help in the evaluation of whether the progressive realization of the right to health is being achieved or not.148 The right to health indicators can be considered as the ‘quantitative or qualitative abstracts of information that can be used to describe’ the right to health situation and context and to measure the changes or trends in the enjoyment of this human right over time.149 Nonetheless, since the right to health requires the development of an effective and inclusive health system of good quality, according to the UN Special Rapporteur on the Right to Health, Uganda must invest in human resources for health if it is to bring about the progressive realisation of the right to health. It must devise proper means to train and retain health professionals, as an effective and efficient solution to the devastating problem of ‘skill drain’ to the health sector in Uganda.150

In a similar vein, in a transparent and participatory manner, the Government of Uganda, through the Ministry of Finance, Planning and Economic Development, in collaboration with the Ministry of Health, and other development partners, should design a National Policy Framework that views health from a human rights perspective, in the general context of the Uganda Poverty Eradication Action Plan (PEAP). Particularly, the Ministry of Finance, Planning and Economic Development should increase budgetary allocations to the Ministry of Health, to effectively, improve on the terms and conditions of health workers, especially of those working in rural and remote areas. This motivation strategy could include provision of better accommodation with good facilities like electricity and water for healthcare workers; and, increased salaries and the timely payment of healthcare workers, as recommended by the Uganda Human Rights Commission research on health rights.151

148.See, YOUR RIGHTS (J.M. Waliggo et al eds., 2005), at 5, available at <www.uhrc.org>

149.See, B. ANDERSASSEN & H.O. SANO, WHATS THE GOAL? WHAT IS THE PURPOSE? OBSERVATIONS ON HUMAN RIGHTS IMPACT ASSESSMENT 15 (2004).

150.The human rights approach to the right to health demands, as expressed by the UN Special Rapporteur on the Right to Health, that the solution to the problem of ‘skill drain must be locally determined, with meaningful ‘active and informed participation of representatives of poor and rural communities, healthcare workers and civil society.’ See, UN Doc. A/60/348, at 17.

151.YOUR RIGHTS, supra note 148, at xvii. The research recommended the following to the Ministry of Health: increased salaries to health workers in order to check on rampant corruption; constant and timely supply of drugs in all health facilities; provision of cost-effective running water (spring protection, harvesting rainwater and boreholes); provision of a balanced diet for patients to enhance their body immunities; provision of electricity and laboratory services to rural health units; the construction and expansion of some health units in order to solve the problem of congestion; securing ambulance services to transport referral cases; employment of more trained staff to all health facilities (and the staff should have chances for refresher courses); and giving priority to the needs of vulnerable groups, like PLHA, PWDs, children, and poor pregnant women. However, I think that a human rights based accountability

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Uganda must devise a health system that focuses on the disadvantaged, the most vulnerable in society and those living in poverty. Until recently, the people of northern Uganda have been living very desperate health conditions. The health condition of the internally displaced persons (IDPs) in Gulu, Kitugm and Pader is appalling. The northern conflict between the Uganda People’s Defence Forces (UPDF) and the Lord’s Resistance Army (LRA) led by Kony forced people into camps with no adequate shelter, no adequate safe water, no quality sanitary provisions and no access to timely healthcare services. There is a need for an effective national health law to regulate the importation and distribution of medical equipment, the sale of drugs, the relationship between health care providers and patients, patient admission and administration procedures, pharmaceutical companies, etc.

In short, the use of a human rights-based accountability to promote health is not an option. Uganda must pay attention to its obligations in relation to the minimum core content of the right to health, which include the recognition of and commitment to a right to health for all citizens and residents. It has to adopt a national health policy based on the ten key right to health analytical framework mentioned above, if the full realization of the core minimum of the right to health is to be achieved. The Ministry of Health must improve its ability to monitor health policies and evaluate health outcomes so as to be able to judge whether the progressive realization of the right to health is on course or not.

Uganda urgently needs an essential public health infrastructure that will protect and promote the health of the people equally, through the provision of adequate, safe and clean water and sanitation for all. Crucially, the Ministry of Health must adopt measures to control and prevent the transmission of major epidemic and endemic diseases such as ebola, diphtheria, tetanus, poliomyelitis, tuberculosis, whooping cough, and measles. The fight against HIV/AIDS is not yet over. Uganda must do more to prevent the scourge. To this end, it is essential to invest in health and reallocate resources in a cost-effective way, and make reproductive and family planning information and services readily available to all persons. At the same time, Uganda needs international assistance and co-operation in a spirit of shared responsibility. Thus, all Uganda’s development partners need to ensure that both international trade agreements and humanitarian assistance promote the right to health other than having adverse effects on it and on all other human rights.

for health better summarizes these recommendations.

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COURTS AND THE NEED FOR DYNAMISM IN THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS: A NIGERIAN PERSPECTIVE

Babafemi Odunsi* & Folake Olaleye**

ABSTRACT

Courts have played, and can always play important roles in the protection, fulfillment and respect of reproductive health rights as a genre of human rights. In their roles of judicial law-making, courts can ingeniously and pragmatically adapt existing legal provisions to address emerging or novel reproductive health matters, without waiting for legislative interventions. Along this axis, in entrenching the rights of women to terminate unwanted pregnancies, the widely reported American case of Roe v Wade offers a remarkable illustration of how courts can courageously and creatively advance the frontiers of reproductive health rights. However, failure of courts to be dynamic in approach can suppress reproductive health rights, especially where there are no clear-cut legislative provisions affirming the guarantee of reproductive health rights, as is the case in Nigeria. Against this background, this article flags the need for dynamism on the part of Nigerian courts in engaging reproductive health rights issues.

I. INTRODUCTION

While we celebrate the promise of a new administration that understands the importance of reproductive health care in women’s lives and the role of government in ensuring access to care, we know that the courts continue to be an important avenue for restoring and protecting reproductive freedom.1

Reproductive health rights, as human rights, consist of two main components-individual freedoms and social entitlements. Realization of these components depends on

*Senior Lecturer, Faculty of Law, Obafemi Awolowo University; McArthur Fellow, Faculty of Law, University of Toronto; Formerly, Research Associate, AIDS and Human Rights Research Unit, (Centre for Human Rights and Centre for the Study of AIDS) Faculty of Law, University of Pretoria. Email:< [email protected]>

**McArthur Fellow, University of Toronto. Email: <[email protected]>.

1. ACLU (AMERICAN CIVIL LIBERTIES UNION), REPRODUCTIVE RIGHTS IN THE COURTS (2009), available online at <http://72.3.233.244/reproductiverights/38611res20090202.html>, (accessed on 13 October 2009) (emphasis added).

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responsibilities on the part of stakeholders that include individuals, communities, social institutions and more particularly the government as the custodian of State resources and protector of collective interests.2

For emphasis, international treaties, national legislations and constitutions, consensus decisions at international conferences as well as international organizations have echoed and emphasized the sanctity of reproductive health rights.3 The obligations of stakeholders, especially governments, to create an enabling social, economic and legal structure for the realization of reproductive health rights have resonated in the various international treaties and other mediums. Yet, there remains the important task of ensuring that stakeholders carry out their obligations in the global drive to make the enjoyment of reproductive health rights a reality, rather than the ‘paper rights’ it seems to be, especially in the developing countries of Africa such as Nigeria. Courts have crucial roles to play in the drive to achieve practical realization of reproductive health rights.

Against this background and from a Nigerian perspective, this article reflects on the roles of courts in promoting reproductive health rights (or undermining it—in the event of failure to act appropriately). Among others, the article highlights the global efforts to establish reproductive health rights as valid basic rights which the government and others owe an obligation to respect, fulfil and protect. The article also considers pertinent international human rights treaties that constitute the legal launching pad for the promotion of reproductive health rights across the world. In a more contextual vein, the article examines the validity of reproductive health rights claim in light of the Nigerian constitutional position on the right to health as a non-justiciable right.

It is argued that there is valid legal basis to claim the right to health, and by the same token, reproductive health rights in Nigeria despite the constitution’s silence on it. At necessary points, the article draws on pertinent cases to underscore the remarkable roles which courts have played (and still need to continue playing) in the promotion of reproductive health rights in Nigeria and beyond. The role of the courts is considered in relation to the plethora of factors that affect the promotion of reproductive health rights.

2.Ruth Dixon-Mueller et.al, Towards a Sexual Ethics of Rights and Responsibilities, 17 REPRODUCTIVE HEALTH MATTERS 111 (2009).

3.Id.

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II. THE PROMOTION OF REPRODUCTIVE HEALTH RIGHTS AND THE

COURTS: AN OVERVIEW

In a comprehensive scope, ‘promotion’ of reproductive health rights connotes the three- piece obligations to respect, protect and fulfil human rights in the specific context of reproductive health, as well as taking measures to attain these goals. The obligation to respect dictates that governments and non-governmental entities refrain from interfering directly or indirectly with the enjoyment of the right to reproductive health. The obligation to protect requires the government or the system to prevent third parties from interfering with the rights or freedom of the people to enjoy the right to reproductive health. The obligation to fulfil requires the government or the system to ensure that people have access to a system of reproductive health care that provides equal opportunity to everyone.4 It would be unrealistic to expect that governments and other people would summarily uphold or safeguard reproductive health rights or any other basic rights. Rather, the reality, as various sources indicate, is that transgression and suppression of reproductive health rights and other rights abound across the world. The attainment of an acceptable level of respect, protection and fulfilment of rights remains a struggle, especially in developing countries of Africa where inconsiderate political leadership and harmful socio-cultural norms have morbidly collaborated in emasculating human rights.

As various decided cases reflect, the courts in different contexts have played (and will continue to play) vital roles in the unceasing struggle for the promotion of human rights. Through courageous decisions and imposition of sanctions in deserving cases, courts have curtailed inordinate transgression of human rights. Also by means of dynamic and pragmatic utilization of judicial mechanisms, courts have also used existing or established rules and principles to sustain emerging or novel human rights issues. It is through this approach that the courts, inter alia, have expanded the frontiers of human rights to accommodate reproductive health as distinct from the generic right to health.

Tacitly and explicitly, series of international treaties, national constitutions and legislations have recognized and given credence to the sanctity of reproductive health rights.5 Courts at high levels in different parts of the world have also upheld the rights

4.See, R.J. COOK, B.M. DICKENS & M. FATHALLA, REPRODUCTIVE HEALTH AND HUMAN RIGHTS, INTEGRATING MEDICINE, ETHICS AND LAW 37 (2003).

5.See e.g., NIGERIA CONST. (1999); International Covenant on Economic, Social and Cultural Rights, U.N.G.A. Res. 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27 (‘Economic Covenant’); African [Banjul] Charter on Human and Peoples’ Rights, 27 June

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of citizens to reproductive health on different fronts.6 Consensus decisions of high- calibre global conferences such as the International Conference on Population and Development (ICPD) held in Cairo, Egypt in 19947 and the Fourth World Conference on Women (FWCW) held in Beijing, China held in 19958 have further strongly affirmed the inviolability of reproductive health rights. A wide spectrum of learned writers, activists and stakeholders also agree on the importance of promoting reproductive health rights.9 Despite all these, the acceptance of reproductive health rights in its different dimensions as legitimate human or basic right remains a contentious issue in different parts of the world. This makes unfettered enjoyment of the right a challenging task, even in developed countries such as the USA, where reproductive health rights seem to have been taken for granted.10

Religious, socio-cultural and other norms and mores are among the factors that militate against the realization of reproductive health rights. Law as a tool of social control and regulation has a crucial role to play in addressing these elements. But law usually is a reflection of the prevailing norms and mores in a society. Thus, the norms in a society may precipitate or aid laws that support the suppression of reproductive health rights. In such a scenario the courts in their ultimate “lawmaking” capacities can intervene to reconcile the unfriendly domestic legal situation with the prevailing international legal order on reproductive health rights, thereby creating an enabling legal framework for the effective promotion of reproductive health rights.

In another vein, promotion of reproductive health rights may be hampered because of ambiguity in the laws touching on reproductive health. Due to uncertainty, the government and policy makers may find it difficult to take required measures for promoting reproductive health rights. In such a situation the courts can also intervene to clear the ambiguity and thus create a legal atmosphere helpful to the promotion of reproductive health rights. Indeed the courts at different times have acted creditably in

1981, OAU Doc. CAB/Leg/67/3 Rev. 5, 21 ILM 58 (1982), entered into force 21 Oct. 1986 (now domesticated in Nigeria as African Charter on Human and People’s Rights Act, Cap. A9 Laws of the Federation of Nigeria, 2004)

6. See e.g., Roe v. Wade (1973) 410 US 113, and R v. Morgentaler (1988) 4 DLR (4th ) 385

(Canada).

7.UNITED NATIONS, REPORT OF THE INTERNATIONAL CONFERENCE ON POPULATION AND

DEVELOPMENT (Cairo, Egypt, 5-13 September 1994, United Nations Doc. N.Y. A/Conf. 171/13 Rev.1, U.N. Sales No. 95. XIII.I8 [hereinafter the Cairo Programme]1994).

8.UNITED NATIONS, REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN [THE BEIJING

DECLARATION AND PLATFORM FOR ACTION], (United Nations Doc., New York, N.Y, A/Conf. 177/20, 1995).

9.See generally, COOK, DICKENS & FATHALLA, supra note 4.

10.See, ACLU, supra note 1.

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upholding the sanctity of reproductive health rights in the face of unfriendly societal norms and ambiguous laws.11

III. REPRODUCTIVE HEALTH RIGHTS: EVOLUTION AND

INTEGRATION

Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capacity to rep