Access to Rights and Governance in the Context of Fragile States

By Désiré Assogbavi

It is universally accepted that human rights are indivisible and interdependent. It is not enough that rights are recognized in national law or policy rhetoric: there should be mechanisms for their full exercise by citizens with no discrimination. But how shall we deal with access to rights in fragile states?

A fragile state has a government is not able to deliver core functions to the majority of its populations. This is true for a wide range of situations, but usually involves a combination of weak administrative capacity and territorial reach, lack of state control over the use of violence, and the lack of accountability to populations, particularly poor and marginalized people. A state is fragile when it is unable to provide for the security and development of a majority of its citizens. A decade ago, most countries in fragile situations were low-income; today, a good number of them are middle-income countries.

The majority of citizens in highly fragile states are known to be poor, experience repeated violence, and suffer economic exclusion and inequality. Is fragility ever an excuse for a lack of respect for human rights, then?

Despite all principles supporting human rights, the reality is that in conflict and post-conflict situations, or other contexts of fragility, there is a breach of individual rights and personal security. In most cases, this includes the violation of a number of other rights due to weak state institutions and state’s inability (but also lack of political will) to meet the basic needs of the population.

Which rights must be met and which should be met, and when and by whom?

The very first step should be the observance of the core principles of human rights: equality, non-discrimination, participation, empowerment, and accountability. Inclusivity and non-discrimination, as well as transparency, are particularly helpful in reducing the tensions and frustration of rights holders, even when state institutions are not able to provide all the rights they are due. This is particularly true when various constituencies including civil society are given the chance to participate in the realization of rights and to promote the inclusive design and organization of democratic institutions such as electoral processes, so as to ensure and facilitate the involvement and participation of socially and economically marginalized and vulnerable groups. Such reform should include measures to support the ability of such groups to exercise their freedoms of association, assembly, and expression.

Prioritization and sequencing?

The International Bill of Human Rights – including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights – indicates a series of rights. But there is no guidance as to which comes first, especially today, when we are strongly convinced of the interdependency of those rights.

Some rights cannot be derogated

Some rights cannot be derogated: Article 4 (2) of the International Covenant on Civil and Political Rights sets out those groups of rights which can never be restricted or derogated. These include the rights to be free from arbitrary deprivation of life; torture and other ill-treatment; slavery, retroactive penalty, and the violation of freedom of thought, conscience, and religion. Article 4 provides for the derogation of other rights during periods of national emergency, under strictly limited circumstances.

In certain situations of the state’s incapacity or even total failure, it may not be possible to restore all services and meet all needs immediately. We are then forced to prioritize and determine which rights must be met first and which are to be realized over a certain timeframe. This is the concept of the progressive realization of rights.

The Covenant on Economic, Social and Cultural Rights allows for the progressive realisation of those rights over time, subject to some limitations (mentioned above). Some economic rights must be met at all times, however, including basic requirements for food and shelter.

Whose responsibility?

Unless we get to a situation of the total inexistence of a government, the state has the responsibility to respect the fundamental rights of citizens regardless of the situation. Fundamental rights are not favors given by the state or the government; they are duty, and those in power must account for this duty.

Fragile states may not have the institutional means to meet all of their rights obligations in a particular period, but it has become common to see other actors taking over some of the duties of the state in terms of meeting basic rights. This seems to be the only way to deal with the situation, and there is still room for improvement.

Different UN bodies have the duty to ensure the protection of rights, depending on the situation. These include the Security Council, with or without the consent of national authorities, the General Assembly, ECOSOC, etc. This protection is normally provided through various forms of intervention within the framework of “peace missions”: Human Rights Rapporteurs, ad hoc Commissions of Inquiry, etc. The UN can also send a mission to assume administrative authority in the state (Côte d’Ivoire, Kosovo, East Timor). But political and ideological interests should have a diminishing influence on any of the solutions, and only a better configuration of the UN Security Council can allow this to happen.

Responsibility of other actors?

Civil Society/NGOs: Because of their flexibility and ability to rapidly respond to crises (less bureaucratic, less driven by politics and interests, ability to mobilize resources) coupled with their experience as well as professional staff, NGOs are playing a growing role in the realization of rights in all situations, especially in fragile contexts. They must be encouraged and empowered to continue playing that role in the post-2015 era. The current shrinking of their space, especially in Africa, must be strongly combatted by all means national, regional and international.

The watchdog role of CSOs in monitoring public and private actors should be of great interest, as it can catalyze accountability for the respect or implementation of human rights, particularly in the context of fragility. It must be strongly supported by all stakeholders.

What about business? The UN Guiding Principles require business, as specialized organs of society performing specialized functions, to comply with all applicable laws, including international laws, and to respect human rights. This applies regardless of a state’s ability and/or willingness to fulfill its own human rights obligations. But when businesses have become part of the problem, then something must be done to change their accountability as we enter the post-2015 zone. Multinationals occur in an number of fragile contexts, and have been seen taking advantage of these areas in a variety of ways, mostly in conflict zones, as catalyzers or perpetuators of the fragility of the state. Their actions have included deal making with arms groups and governments in the Democratic Republic of Congo, Central African Republic, South Sudan, and others.

Every year, fifty billion US dollars disappear from Africa through illicit financial flows. At least 70% of these outflows are from extractive industries, some of them in fragile states where national budgets do not meet basic economic rights. Countries like the United States have taken interesting steps to tackle this issue, but we need global coordinated action.

About the Author

Desire Assogbavi is a Lawyer from Togo and currently the Resident Representative of Oxfam International to the African Union in Addis Ababa, Ethiopia. He was formally a Commissioner at the National Human Rights Commission and the National Inter-Ministerial Commission on International Humanitarian Law of Togo

The views expressed in the article are entirely those of the author and are not necessarily the views of his organization.

Hot Topics of the African Union Heads of State Summit in Johannesburg, South Africa

The year 2015 has been declared by the Assembly of the African Union as the “Year of Women Empowerment and Development towards Africa’s Agenda 2063”. As it has become the practice the theme of the year will be discussed in depth during the mid-year summit, after the symbolic launch of the theme at in January. Women Empowerment and Development towards Africa’s Agenda 2063 will be widely discussed in Johannesburg during a presidential interactive panel discussion – after a presentation on the theme by the Women & Gender Directorate of the African Union Commission. The debate is expected to be open and a decision or a special declaration is expected to be adopted.

The Summit will be, as usual organized in 3 steps:

1/ The Permanent Representatives Committee, PRC (Ambassadors): 7 – 8 June in Pretoria (O.R. Tambo Building)

2/ The Executive Council, EC (Ministers of Foreign Affairs): 10 – 12 June in Johannesburg (Sandton Conf Centre)

3/ The Assembly of the AU (Heads of State and Government) 14 – 15 June in Johannesburg (Sandton Conf Centre)

A number of other parallel/side meetings will also normally be held.

Hot Topics of the Summit

According to information gathered from reliable sources in Addis, the Assembly of Heads of State will hold a closed door debate even before the official opening ceremony of the Summit on 14th June. Discussions will include:

Migration, Continental integration including Free Movements, Xenophobia, Governance, Elections problems in Africa, Streamlining of AU Summit method of work and procedures.

A Ministerial Retreat will also be held on 9 – 10 June in Jo’burg and the Peace and Security Council is expected to meet at Heads of State level on 13 June.

Beside the debates and an eventual decision/declaration on the main them of the Summit “Women Empowerment and Development towards Africa’s Agenda 2063”, the following issues are likely to dominate Summit discussions:

Africa Integration with focus on free movement of people and goods (As part of the 10 years implementation plan of the Agenda 2063)

Governance: with Focus on the African Governance Architecture and Elections (As a response to the deficit of democracy and governance in a number of countries)

Illicit Financial Flows: (A follow up on Tabo Mbeki’s report and recommendations)

10 Year Implementation Plan of the Agenda 2063 (see Jan 2015 decisions and documents)

Alternative sources of financing for the African Union (see Jan 2015 decisions and documents)

Conflict, Peace and Security situation in Africa

Climate Change and the Paris Conference: Report by President Abdel Fattah Sissi, Egypt

Issues related to recent developments in the continent: Migration, Xenophobia in South Africa, Counter-Terrorism, and Mediterranean Migration etc.

Structural Reform of the AU Commission etc.

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If you want to receive my regular updates, comments and analysis on these issues during the Summit follow my blog: assodesire.wordpress.com or  and follow me on Twitter @assodesire

Citizens’ Participation in African Union Decision Making Process: Some Reflections

By Desire Assogbavi

Recent developments at the African Union especially the launch of Agenda 2063 – The Africa We Want –  is a landmark step towards the realisation of “an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the global arena.” The Agenda itself recognises that people’s ownership and mobilisation is needed as one of the critical enablers to concretise the seven aspirations of what we can call the business plan of Africa. This must be true both at country, regional and continental level. Civic space is being terribly challenged in a growing number of countries on our continent. At the African Union level, CSOs/Citizens’ institutional space is clearly recognised in the founding documents of the AU (constitutive Act) as well as in other policies and instruments of the Union has been growing significantly in recent years but it is still not properly structured. Engagement is still informal in most cases.

Citizens/CSOs influencing space at the African Union must include two main set of targets: 1/AU Member States and 2/ African Union organs including the AU Commission (AUC) but also other organs based outside of Addis Ababa.  In addition, influencing and participation must be built on the decision making process of the African Union starting from policy proposals, the Permanent Representatives deliberations, Experts meetings, Ministerial meetings until the final adoption by the Summit or other organs of the Union. An efficient influencing strategy must include issue-based power analysis, countries’ geopolitical positions, and engaging specific departments of the AUC etc. without forgetting external actors’ influence.  Efficient influencing strategy must also take in consideration the annual calendar of events of the AUC normally adopted in January every year (now discussed in the June/July Summit). We should not also forget the fact that the African Union is looking for expertise and alternative analysis on particular issues. CSOs aiming to contribute must seek specialization and grassroots based perspectives that only CSOs have in most cases.

Decisions of the African Union Executive Council and Assembly are normally the result of work done months before each summit by the Commission and other organs, and in decision-making processes within individual member states. The majority of proposals presented to the Assembly at the Summit have already been largely agreed before they are tabled. Some of the reports on the Summit agenda are even adopted without any further discussions.

Documents adopted by the Assembly usually start life as a policy proposal from one of the AU Commission’s departments, from another AU organ or from a Member State. These proposals are debated in an experts’ meeting, whose members are nominated by Member States, and then in a meeting called for the relevant Ministers from Member States to approve or amend the experts’ proposals. With the exception of decisions with implications for the budget which are then considered by the PRC, the final documents from the ministerial meeting will go directly to the Executive Council and the Assembly for adoption.

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Engaging with Experts and Ministerial Policy debate: Over the last 5 years or so, non-state actors’ engagement of the various steps of the AU Decision making process has been easier than ever, even though it remained informal and unstructured. Most of the departments of the AUC have been systematically inviting non-state actors to policy debates including experts and ministerial meetings. NGOs are even allowed to take the floor during those meetings and share their reports. Organizations that have shown interest in particular issues have normally had a chance to be part of policy discussions at experts and ministerial level as long as they keep contact with policy/desk officers at the AUC or other organs. In 2014/15 for example, my organization Oxfam and a number of its partners, African CSOs and other actors  have had numerous direct engagements with Experts and Minsters in charge of health, peace and security, humanitarian, rural economy and agriculture, economic affairs, trade and industries, human rights, gender etc. In many cases such engagement include participation in formal meetings, side meetings hosted by NGOs and well attended by policy makers including Ministers, Ambassadors, Commissioners and desk officer of the AUC. It is important to insist on the fact that, with very few exceptions, policy influence can only happen at ambassador, expert and ministerial meetings level. At the AU summit, most positions would have already been cooked and a good number of ministerial reports are no more open for discussion before adoption.

AU Summit, a networking opportunity: Normally, there is very little room to catalyze deep policy changes at the Summit level only. Engagement must start from the birth of the process described above. However influence on burning current or on-going issues are best done during the AU Summit. Also, issues on which countries have failed to reach strong consensus during the normal policy process come back to the Summit. The AU Summit equally presents an important opportunity for networking for further engagements and for media work to raise and draw policy makers’ attention on important and current issues. It is also an unique opportunity for organizations, donors and other personalities operating on a wide range of issues from the whole continent and elsewhere to be at the same place at the same time. Non-State actors can hold policy influencing side events during the AU Summit and have delegations to attend. A number of pre-summit consultations are held by CSOs including women groups. ECOSOCC and CIDO are also supposed to hold CSOs pre-summit events but this has not been consistent in recent years.

Observers (CSOs) Accreditation to the AU Summit: Non-state actors’ access to AU Summit has not been properly structured so far and it is difficult to know the actual criteria used by the AUC to identify CSOs to be invited. Organizations working with specific departments at the AUC can forward their applications to those departments. The Citizens and Diaspora Directorate normally post a call for application on the AU website 3 months before the Summit. I am not sure this has been systematic though.

Due to space constraint, the AU Commission makes choices likely based on the timing of application, role envisaged in the Summit, activities related to the themes of the Summit, history of the organization requesting accreditation and institutional relation with the African Union organs etc. CSOs intending to participate in the Summit must first of all apply formally and this needs to be done at least 3 months before the Summit. NGOs having a MoU with the African Union are normally systematically invited to the Summit even though it is not always the case. It is always advisable to make a request ahead of every summit if you wish to be invited.

The current trend since January 2013 is that January Summits seem to be more open to observers (CSOs & Non-African Countries, Int. Gov. Organizations etc.) while access to the mid-year summits are more and more restricted. Speculations indicate that Ambassadors complain about the disturbances at Summit meetings by partners (donors) who host multiple bi-lateral meetings with member state delegations while formal summit policy meetings are running. I have personally witnessed situations where Heads of State and their Ministers of foreign affairs and at times the Ambassadors leave Summit meetings in order to meet with partners. A formal decision is likely to be taken on this issue during the 25th Summit in South Africa in June 2015.

African CSOs must not be restricted because of the disturbance caused by partners during the Summits. The AU Summit is an unique strategic and symbolic space where citizens and their formations have a chance to interact with high level policy makers in the corridors, during official opening and closing ceremonies and social events. CSOs also use it for media work including press briefings interview and other media programme.

It is well understood that CSOs do not attend close debates of policy makers during the Summit however the AU Commission itself recognises that Observers including CSOs “are entitled to attend the working sessions of the Executive Council dealing with agenda item of which the AU Commission considers that they are concerned I am not aware of any case where CSOs have used this provision always included in the AU invitation letters to Summits.

As a way forwards: while African CSOs must stand against any closure  or shrinking of the AU Summit space (an unique and legitimate continental policy and networking space for African citizens) we should effectively organize ourselves to engage on a consistent and continued basis, the most influential policy spaces of the African Union which are the experts and ministerial meetings as well as engagement of the Addis Ababa based Permanent Representatives, various AU organs/ desks etc. Access to those spaces is more and more open.

To read more on this issue, get our AU Compendium here: https://www.oxfam.org/en/research/african-union-compendium

Note: Views in this blog are absolutely personal.