Africa could lead the way on rights
A study suggests that a number of African ombud institutions are incorporating the protection of human rights in their mandates
HUMAN Rights Day on March 21 marks a time to reflect on the long struggle against an unjust apartheid state. To remember the sacrifices of this struggle, and to usher in justice and democracy, our constitution and Bill of Rights were launched on the anniversary of Sharpeville in 1996.
Through the turbulent yet hopeful years of the post-apartheid era, this enlightened contract has been the glue that has held South Africa together, providing a framework for the creation of new legislation and policy grounded on the protection and promotion of human rights.
March 21 this year marked another significant moment for our country, as our constitution and Bill of Rights reaches adulthood, celebrating its 21st birthday.
This coincided with several other milestones in terms of the promotion of the concept of human rights.
The African Charter on Human and Peoples’ Rights, also known as the Banjul Charter, marks its 30th anniversary this year. The charter was born in Gambia in 1987, when a commission of the same name was set up to oversee the document.
Equally significant, the first ombudsman on the continent, the Commission of Human Rights and Good Governance in Tanzania, turns 51 this year, entering the realm of a respected elder.
A national ombudsman is an independent oversight mechanism, which receives and investigates complaints about administrative actions and decisions in the delivery of government services. The ombudsman institution does not have prosecutorial or enforcement power but it does have the power of moral persuasion and public awareness.
The word “ombudsman” derives from the Swedish word “umbudsmann”, meaning representative. The modern concept dates back to 1809 when the Swedish Ombudsman was established to protect the rights of citizens through setting up a supervisory agency, independent of the constitutional monarchy whose powers were reduced with the advent of an elected governing body. Over a century later, the second modern ombudsman was established in Finland in 1919 and then the third in Denmark in 1954.
The 1960s began a period of rapid, global adoption of the concept: Norway and New Zealand in 1962; Tanzania, Trinidad and Guyana in 1966 and the UK in 1967. Adoption of the ombudsman concept by decolonising states in the 1960s and later by the emerging democracies of Eastern Europe was motivated in large part by the political histories of those states where ordinary people had very little access to justice.
Today, about 160 countries have created national, provincial and/ or regional ombudsman offices, known by a number of different names. Francophone countries tend to use the term mediator. In South Africa, the ombudsman is called the public protector.
A recent comparative study on the functioning and legal status of the ombudsman institution in Africa (2014) conducted by the African Ombudsman Research Centre suggests that a number of African ombudsman institutions are, in fact, leading the way in terms of incorporating the protection of human rights into their mandates. Out of a sample of 14 African countries the study found that five (Tanzania, Lesotho, Namibia, Mozambique, South Africa) all had human rights violations as one of their focus areas. The study showed furthermore that five countries out of the sample (Tanzania, Ivory Coast, Chad, Mozambique and South Africa) were involved in both state and private advocacy.
This extension of the ombudsman function beyond the public sphere is a leading edge development. A number of Western countries are similarly grappling to assert a role for ombudsman oversight over newly privatised sectors.
Within the over-arching global principles of independence, impartiality and integrity, each ombudsman institution must respond and adapt to the local context. That is certainly the history and evolution of the role of the ombudsman in Africa. Tanzania’s Commission for Human Rights and Good Governance is responsible not only for investigating maladministration and human rights violations, but also for promoting and monitoring the government’s ratification and adherence to international human rights treaties and conventions, monitoring compliance with international human rights standards, and aligning national legislation with such standards. Given Namibia’s intimate relationship as a Trusteeship of the UN, it is not surprising that the ombudsman of Namibia has a mandate to investigate not only maladministration and human rights violations, but also the degradation of the environment and natural resources. This is in accordance with UN recognition of the right to a safe, clean, healthy and sustainable environment, as a human right – integral to the full enjoyment of a wide range of other human rights, including the rights to life, health, food, water and sanitation.
The breakup of Yugoslavia, followed by the Yugoslav Wars of the early 1990s, and the Rwandan genocide of 1994 have brought renewed attention to the importance of effective ethnic and religious conflict resolution as a mechanism for the prevention of human rights abuses.
Responding to this awareness, Burundi stands out as a singular global example of country that has built a statutory mandate to contribute to reconciliation and peacemaking through its Ombudsman Institution. Law No. 1/04 of 24 January 2013 (amending Law No. 1/03 of 25 January 2010) provides that the president of the republic may ask the ombudsman to: participate in acts of reconciliation between the public administration and “social and professional forces” (Article 6, para 3); deal with special missions of settlement and reconciliation on general issues concerning relations between “the political and social forces”; and, undertake specific tasks relating to issues of reconciliation and peace internationally to promote co-operation in preventing identity and religious conflict.
These extended mandates are encouraging and augur well for the future. However, without strong powers of enforcement sceptics could credibly dismiss the impact of the institution on the continent as a toothless watchdog. Once again, however, African ombudsman institutions are leading the way in broadening the powers and influence of the institution. The constituting legislation of the ombudsman in Tanzania and Namibia enables non-compliance to be remedied by recourse to parliament or to the courts as a last resort.
In South Africa the recent Constitutional Court case, EFF vs Speaker of the House of Assembly, 2016, broke new ground and has garnered global attention by resolving the ambiguity of the public protector’s powers by recognising that recommendations by their nature were binding, rather than merely voluntary. The court held that the president and National Assembly had failed to defend, uphold and protect the constitution by not complying with the remedial action recommended by the public protector. This case goes a long way in establishing that, the very nature of the ombudsman institution itself implies that recommendations must be followed absent a constitutional rationale for not doing so. This case also demonstrates that power of the constitution of South Africa to achieve its goals as articulated by Nelson Mandela at the 2000 Quadrennial Conference of the International Ombudsman Institute held in Durban:
“Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to scrutiny of independent organs. “This is an essential element of good governance that we have sought to have built into our new constitutional order.
“An essential part of that constitutional architecture are those state institutions supporting constitutional democracy. Among those are the Public Protector, The Human Rights Commission, the Auditor-general, the Independent Electoral Commission, the Commission for Gender Equality, Constitutional Court and others.
“It was to me never a reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as president, administratively acted in a manner they would not condone.
“From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly the public protector had on more than one occasion been required to adjudicate in such matters.”
Like the rest of the world, African countries face formidable challenges, including political repression, ethnic conflict, environmental degradation and gender discrimination.
The positive news is that ombud institutions on the continent have shown they have the potential to evolve in response to these challenges, in particular, by incorporating the protection of human and fundamental rights into their mandates.
If the ombudsman institution throughout the continent is protected, resourced and respected, it will in turn empower both the AU to achieve its Agenda 2063 and Africa, as a whole, to re-negotiate its position in a globalised world on more equal terms.
Advocate Arlene Brock is director: African Ombudsman Research Centre at the University of Kwazulu-natal. Dr Annie Devenish is Research Project Manager: African Ombudsman Research Centre at the University of Kwazulu-natal.