by Dominic J Nardi
Wednesday, 16 September 2009 11:59
from: http://www.mizzima.com/edop/commentary/2769-asean-can-take-a-leaf-out-of-african-union-.html
Mizzima News - ASEAN still has much to learn about establishing an
effective human rights body from – of all places – Africa.
As the Association of Southeast Asian Nations prepares to appoint its
first set of human rights commissioners to the new ASEAN Human Rights
Body at the 15th ASEAN Summit this October, the commission itself
faces skepticism and uncertainty about its future. Human rights
activists allege that ASEAN stripped the commission of any teeth in
order to appease perennial human rights violators such as Burma.
Defenders counter that, given ASEAN's concerns over national
sovereignty (the infamous "ASEAN Way"), the result was a necessary
political compromise. Indeed, comparing the ASEAN Human Rights Body to
the European Court of Human Rights would seem unfair, given that
Europe consists exclusively of liberal democracies. However, even if
we look to the rest of the developing world, ASEAN still has much to
learn about much about establishing an effective human rights body
from – of all places – Africa.
Historically Africa has had more petty dictators, more xenophobic
governments, more genocides, and more overall human rights problems
than ASEAN. Despite these challenges, the African Union has developed
a fairly advanced human rights system.
During the 1980s, African leaders adopted the Banjul Charter on Human
and People's Rights. Since then, the region has also adopted treaties
protecting children's and women's rights, as well as a charter on
democratic governance. Africa's human rights system exists not only on
paper, but also has teeth: the African Commission on Human and
People's Rights.
African Union member countries elect 11 commissioners for a six-year
renewable term. These commissioners are independent from their
respective governments and must be human rights experts of the
"highest reputation." Impressively, the Commission has both the
mandate and political will to rule against African governments for
discrimination, free speech, arbitrary detention, torture, and a
variety of other rights violations. When a military junta still ruled
Nigeria in the late 1990s, the Commission ordered the government to
release a journalist who had been arrested without a warrant and
prosecuted in a military tribunal. Several years ago, it ruled that
the Republic of Guinea violated the Banjul Charter by inciting solders
to evict, rape, and torture Sierra Leonean refugees. The Commission
has interpreted African human rights broadly, finding that a state of
emergency does not justify violating human rights. It has even
ventured into political disputes, condemning the government of
Mauritania for dissolving the opposition party in 2000.
Admittedly, the African human rights system is far from perfect. The
African Commission has no independent enforcement mechanisms. Some
countries do comply voluntarily, but, even when governments refuse to,
a favourable decision from the commission can constitute a powerful
moral victory. Also, the Commission's docket is backlogged since it
can only meet for two 15-day sessions each year. However, the
Commission has taken important steps toward not only supporting
individual human rights victims, but also promoting human rights
ideals throughout the continent. Despite Africa's sensitivity over
their national sovereignty after being colonized by Europe, many
African governments now consider it appropriate to intervene in order
to protect human rights. Last year, when Zimbabwe's Robert Mugabe won
an election through violence and fraud, the Southern African
Development Community strongly criticized his actions and successfully
pressured him to form a coalition government with the opposition. In
2005, the African Union even suspended Togo in response to an
unconstitutional seizure of power, which convinced the government to
call new elections. Moreover, the African Union is currently
establishing a stronger African Court of Justice and Human Rights to
hear human rights cases. As a result, according to the U.S. think-tank
Freedom House, Africans on the whole currently enjoy more civil and
political freedom than Southeast Asians. While Africa still faces many
challenges, human rights violations are no longer accepted as the norm
thanks in part to efforts of the African Commission on Human and
People's Rights.
By contrast, ASEAN has yet to adopt a single human rights treaty and
struggles to condemn gross rights violations committed by its member.
Unlike African human rights treaties, neither the ASEAN Charter nor
the ASEAN Human Rights Body's Terms of Reference detail specific
rights, but rather list vague principles, such as non-discrimination
and the rule of law. Thus, it is not even clear whether Southeast
Asians possess the same human rights that Africans currently enjoy.
Moreover, the ASEAN Human Rights Body will not be nearly as strong as
its African counterpart. It cannot hear individual complaints from
ASEAN citizens whose rights have been violated. In addition, the
commission has no power to monitor or investigate abuses in ASEAN
countries. Rather, its main function appears to be merely promoting
human rights awareness. The ASEAN Terms of Reference also provides
little guidance on the qualifications for commissioners – a far cry
from the Africa Union's requirement that its commissioners be human
rights experts of the "highest reputation." ASEAN's commissioners will
have no independence, serving merely as "representatives" of their
respective governments. Should a commissioner become too vocal, the
government can remove him at its discretion at any time.
ASEAN and the Africa Union are two very different regions, but
nonetheless the comparison provides some useful lessons as ASEAN
prepares to appoint the first human rights commissioners. First of
all, a strong regional human body can coexist with political
diversity, conservative cultures, and national sovereignty. The
African Commission hears individual complaints from human rights
victims who live under authoritarian governments. This may embarrass
some politicians, but has certainly not threatened the regimes of
dictators such as Zimbabwe's Robert Mugabe. It is likewise difficult
to see how a stronger ASEAN Human Rights Body would topple Burma's
Than Shwe. Indeed, part of the African Commission's success derives
from using nuanced legal interpretations to balance the concerns of
sovereign governments with the imperative of protecting human rights.
For example, it requires human rights victims to work within their
country's own justice system before appealing to the Commission. This
allows governments the first chance to redress any human rights
violations and save face.
Rather than trying to find a similar compromise, ASEAN seems to have
simply hid behind the mantra of the "ASEAN Way." Southeast Asian
leaders should take a closer look at other regional human rights
bodies, particularly Africa's, in order to learn how to balance
meaningful protection of human rights with national sovereignty. In
the longer run, doing so will help create a stronger ASEAN Community
and give both ASEAN and its member governments more legitimacy in the
eyes of their citizens. In fact, given Africa's relative experience
with human rights, perhaps we will soon see African Union legal
advisors sent to Southeast Asia in order to help the ASEAN Human
Rights Body comply with international human rights standards.
(Dominic J Nardi, Jr. is a visiting research fellow with the
Governance Institute, a legal think-tank dedicated to promoting the
rule of law. He has worked with human rights organizations in
Southeast Asia and advised women's' rights NGOs in East Africa. In
addition, he has a J.D. from Georgetown Law and a Masters in Southeast
Asian Studies from Johns Hopkins SAIS. The views expressed are his
own.)
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