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.

Burundi: The African Union Must Catch Up Quickly!

La version en Français ici:

The situation in Burundi is becoming more and more serious. Police is firing live ammunitions at protesters; armed militias are terrorizing citizens. 24,000 people have already fled the country, including mayors of some areas … At least 12 people have died dozens were seriously injured and over 600 arrested and detained in inhumane conditions…

Yesterday, the Vice President of the Constitutional Court of Burundi Sylvère Nimpagaritse denounced pressures and death threats on his person during the assessment of the constitutionality of 3rd term of the incumbent president. He then fled the country. During deliberations of the Court, while 4 out of 7 members thought the 3rd mandate is unconstitutional, the court deferred its decision. Thus, the death threats started by the government … It is now clear that this court is no more credible and none shall consider its decisions.

The African Union Must Catch up

In its communiqué of 28 April 2015, The Peace and Security Council (PSC) of the African Union has merely ” took note that the Burundian Senate has seized the Constitutional Court on the interpretation of the Constitution regarding the eligibility of President Pierre Nkurunziza’s candidature for re-election and urged all Burundian stakeholders to respect the decision of the Constitution”. The Chairperson of the AU Commission took the same position on her Twitter account a few days before… I had already found this position as weak and ineffective in view of the gravity of the situation on the ground, being aware of the strong influence of the political authorities on the State institutions. Limiting the solution of the Burundian problem to the decision of the current Constitutional Court is simply paving the way for a constitutional coup by the current authorities.  Everyone knows about this practice in many countries in our continent.

Given the gravity of the situation in Burundi, it is no longer enough to just ask the “stakeholders to respect the constitution and the Arusha Agreements.” The African Union must be clear and state that a 3rd term is purely against the constitution and the spirit of the Arusha Agreement.

I believe that the African Union has a certain influence on Burundi. In the past, the AU has led with success a peacekeeping operation in Burundi. The AU has invested its troops and resources in Burundi. Today, the African Union must avoid hesitation and be categorical. We can no more allow a new civil war in Burundi. Our continent has no mean to handle it. We already have too many problems to solve; too many challenges to face. The last civil war in Burundi killed 250,000 people.

Now that the Constitutional Court has no more credibility, the African Union and the PSC must seek advice of their legal bodies on the constitutionality of the 3rd term in Burundi in order to fix this issue once and for good. It is a historic responsibility. Yesterday our continental body missed similar opportunity in Burkina Faso until citizens ousted their dictator. Today a new opportunity shows up for the African Union to join the rest of the world and isolate President Nkurunziza.

The risk of a military coup in Burundi is very high right now. We should not get there. Africa must stop projecting the image of a continent with brutal methods. Political isolation of President Nkurunziza by the African Union will certainly force him to pull back…

The Peace and Security Council must meet urgently to denounce the interference of the Burundian authorities in the functioning of the Constitutional Court, dissociate itself from any decision of a court being ordered by the political power and declare the 3rd term unconstitutional and against the Arusha Agreements.

Note: My opinions are absolutely personal and do not commit my organization