ASEAN can take a leaf out of African Union

by Dominic J Nardi
Wednesday, 16 September 2009 11:59

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.)