Africa unites against tyranny!
The African Union (AU) held the Seventh Ordinary Session of its Assembly of Heads of State and Government in Banjul, Gambia on 1-2 July. The Assembly was well attended, signifying the importance that our continent attaches to the AU. And indeed, the Assembly addressed a number of issues that are of critical importance to the future of Africa.
The collapse of the colonial system on our continent accelerated with the independence of Sudan in 1956, followed by the liberation of Ghana in 1957 and Guinea (Conakry) in 1958. This process of liberation generated great hopes among the African masses that now that they had the possibility to exercise their right to self determination, they would build a new Africa of liberty, peace and prosperity.
However, in many cases, the few decades following the liberation of the majority of the African countries painfully disappointed the hopes of these African masses. Instead of liberty, peace and prosperity, many countries experienced the precise opposite. In many countries, the people fell victim to military dictatorship, war and repression, and growing poverty.
However this did not mean that the forces of liberty, peace and prosperity had been defeated for all time. Throughout the years of the existence of the Organisation of African Unity (OAU), from 1963, until it was replaced by the African Union in 2002, certainly in its documents, the OAU regularly reaffirmed the commitment of Africa to the objectives of liberty, peace and prosperity.
The impetus towards the achievement of these goals has increased over the last few years. The Constitutive Act that created the AU spelt out a number of specific measures in this regard, thus going further than the vision contained in the OAU Charter. At its last Assembly in 2001, the OAU also authorised the institution of the New Partnership for Africa's Development (NEPAD), to give effect to various decisions it had taken in earlier years focused on Africa's socio-economic development.
It should therefore come as no surprise that the July 2006 Banjul Assembly attended to some of the challenges Africa is committed to address, to deal with some of the negative features of the post-colonial years. Specifically, I refer here to the impending prosecution of the former President of Chad, Hissène Habré, and the establishment of the African Court on Human and Peoples' Rights.
Chad became independent in 1960, with François Tombalbaye as its first President. However, an armed uprising against the government started in 1963, following the banning of opposition parties. Ultimately President Tombalbaye was killed during a coup d'etat in 1975, and General Felix Malloum became President. After further conflict, Malloum was removed, and was replaced by General Goukouni Oueddei in 1979.
He, in turn was removed by Hissène Habré in 1982. Nevertheless violent conflict continued, also drawing in Libya, France and the United States, which supported one or another of the belligerents. The conflict continued and Hissène Habré was overthrown in 1990 by the current President of Chad, Idriss Deby, who has since been elected thrice. Habré fled to Senegal, where he remains to this day.
This story of coup and counter-coup in Chad exemplifies precisely the terrible legacy that our continent and the AU are determined to relegate to the past. This same legacy of armed seizure of power and rule by force is what led the Banjul Assembly to discuss the future of Hissène Habré.
For a number of years, some Chadians and human rights groups have accused Habré of crimes against humanity, torture, war crimes and gross violation of human rights, allegedly committed while he was President of Chad. In this regard, Habré is accused of systematic torture and the murder of up to 40,000 political opponents.
In 2000, the Senegalese courts ruled that Habré could not be tried in Senegal for offences committed in Chad. However, last year, Belgium indicted Habré for these alleged crimes, using extra-territorial legislation that has now been repealed. It then applied to the Senegalese courts to extradite Habré to Belgium to face trial. The Senegalese courts refused to rule on the application. The Senegalese government then decided to ask the AU to decide how this matter should be handled.
At its Khartoum Assembly in January this year, the AU decided to establish a 'Committee of Eminent African Jurists' to advise the next (Banjul) Assembly on how to respond to the Senegalese request. The Khartoum Assembly however went on to direct that one of "benchmarks" that should guide the Jurists is "adherence to the principles of total rejection of impunity".
Here we should take note of the fact that the Constitutive Act of the AU calls for "respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities". The Khartoum Assembly also requested the Jurists to "make concrete recommendations on ways and means of dealing with issues of a similar nature in future".
Accepting the recommendations of the Jurists, the Banjul Assembly directed that Habré should be tried in the Senegalese courts. Among other things, it said that Senegal was obliged to do so by virtue of its obligations under the UN Convention Against Torture.
In their Report to the Banjul Assembly, the Jurists said:
"The rejection of impunity was accepted in total by the Summit. The Committee (of Jurists) sees no difficulty since this is a principle that has been recognised since World War II and is now upheld worldwide following the establishment of the International Criminal Court...Africa must take account of recent developments in the international criminal law arena, such as the Pinochet, Taylor, etc., cases have demonstrated.
"The Committee considered that Hissène Habré cannot shield behind the immunity of a former Head of State to defeat the principle of total rejection of impunity that was adopted by the Assembly. The Committee also considered that in view of the nature and gravity of the crimes alleged against him, Hissène Habré cannot benefit from any period of limitation (i.e. prescription)...
"Chad is...under an obligation to provide all the required judicial assistance, more particularly as far as access of victims and witnesses is concerned...All African countries that have ratified the Convention Against Torture are eligible as venues to try this case...Habré should be tried by an African member State - Senegal or Chad in the first instance, or by any other African country...
"The African Court on Human and Peoples' Rights, whose Protocol has already entered into force, and the Court of Justice of the African Union whose Protocol is still under the ratification process, do not have jurisdiction to hear criminal matters at the present time. Therefore these two institutions cannot hear the Habré case...
"The African Court should be granted jurisdiction to try criminal cases. The Committee therefore recommends that the on-going process that should lead to the establishment of a single court at the African Union level, (combining the Court of Human and Peoples' Rights and the African Court of Justice), should confer criminal jurisdiction on that court. The Committee further recommends that the text should be adopted through the quickest procedures possible."
The decisions taken by the Khartoum and Banjul AU Assemblies, and the recommendations of the Committee of Eminent African Jurists, unequivocally demonstrate the determination of the African continent to ensure that our peoples should never again fall victim to tyranny and the denial or violation of their human rights.
They send a powerful message to all governments on our continent that Africa will not, again, stand by as any of these governments commits crimes against or in any way abuse the people.
To emphasise this point, the 11 judges of the African Court on Human and Peoples' Rights were sworn in during the Banjul Assembly. This court should therefore soon be operational. We are proud that one of our Judges-President, the Hon Bernard Ngoepe, was also chosen to serve as one of the 11 judges.
This Court has been formed to adjudicate matters that arise from the African Charter on Human and Peoples' Rights. Among others, the Charter says:
"Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained."
The Protocol governing the establishment of the Court goes on to say: "If the Court finds that there has been violation of a human or peoples' right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation. In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary...The States parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution."
Our movement cannot but salute and support the far-reaching decisions taken by the AU to put in place concrete measures and institutions to prohibit and punish tyranny and violation of human rights. These objectives have been a central feature of the goals of our movement since its foundation 94 years ago.
In his famous Address at the Founding Conference of the ANC on 8 January,1912, Pixley ka Isaka Seme said: "The white people of this country have formed what is known as the Union of South Africa - a union in which we have no voice in the making of the laws and no part in their administration. We have therefore called you to this Conference so that we can together devise ways and means of forming our national union for the purpose of creating national unity and defending our rights and privileges."
The 1943 "Africans' Claims" said "there (shall) be established peace which will afford...all peoples and races the means of dwelling in safety within their own boundaries, and which will afford the assurance that all men in all lands shall live out their lives in freedom from fear, want and oppression."
The Freedom Charter said: "The people shall govern. All shall be equal before the law: no one shall be imprisoned, deported or restricted without a fair trial; no one shall be condemned by the order of any Government official...All shall enjoy equal human rights."
All these aspirations, for whose realisation many of our people sacrificed their lives, have now been incorporated in our country's Constitution. This reality obliges us, at all times, to continue to respect the commitment made in the Constitutive Act of the AU, and confirmed by the Khartoum and Banjul Assemblies, "to promote and protect human and peoples' rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law."
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Migration
The recent spate of crimes allegedly committed by foreign nationals in South Africa has turned our attention towards the relationship between immigrants and crime. Several people have called on the Minister of Home Affairs to tighten the borders and to commit the immigration officers, as one person said, to "hunt and deport all illegal immigrants". Easily, recklessly and without any substance, some people have argued that most crime in South Africa is committed by foreign nationals, regardless of the fact that a mere visit to Correctional Centres in our country would prove this to be false.
The criminals who are foreign nationals have touched a raw nerve among many South Africans and prompted the worst in them, raising the real fear that we may begin, unless we are careful and pre-emptive, to see xenophobic violence and related intolerances. Most foreign nationals in our country are themselves irked by the behaviour of the criminal element among them because they know that this element exposes them to danger and negative sentiment, thus making them vulnerable to crime, discrimination and intolerance.
The fact that there are many South Africans serving long sentences in the prisons of South East Asia and South, Central and North America for drug trafficking, while others plotted coups in some African countries, does not mean that all South Africans living in those countries are, perforce, criminals. It would be a tragedy and unfair if the rest of us were judged, when travelling, studying or working abroad, by the actions of a coterie of criminals who may be sharing the same nationality as we do.
These issues are human rights issues. They have little to do with the fact that not so long ago, and for over three decades, the rest of Africa hosted South Africans as refugees, and at great cost to these many countries. Some of these countries, such as Botswana, Zimbabwe, Mozambique, Angola and Lesotho, as a result, were even raided and their nationals killed in their sleep by the apartheid regime. South Africa owes Africa a lot for the loyal and unflinching role she played to help secure our liberation. Notwithstanding that, South Africa has human rights obligations towards migrants living in our country. Those obligations exclude tolerance for crime, whether committed by locals or foreign nationals. We should treat all criminals the same, be they South African or not.
It is estimated that during the 1980s and 1990s, the numbers of Mexicans who migrated to the United States (US) increased from about 200,000 to 300,000. Of the nine million Mexicans currently living in the US, 4.7 million are illegal and undocumented. According to Francisco Alba, writing in "Mexico: A Crucial Crossroads", political and security concerns did not discourage poor, desperate, or ambitious Mexicans from crossing into the US, whether legally and openly, or surreptitiously and undocumented. People are prepared to take the risks to migrate, even if multi-billion dollar physical barriers are erected, whether those barriers include the possibility of being devoured by the lions in the Kruger National Park, being toasted by the electric fences or drowned in vicious rivers.
In his letter, "Is there anybody there!", in ANC TODAY Vol 5 No 40, President Thabo Mbeki quoted from the UK 'Sunday Herald Online' of 2 October 2005, which had published an article written by Elizabeth Nash, entitled "Spain's borders strengthened after African refugees storm European frontier", in which she said:
"African refugees have been tramping north and hammering on the doors of Europe for years, desperate to flee poverty, war and oppression to reach the promised land of plenty and freedom. But last week's bloody border raids on Spain's tiny Moroccan possessions of Ceuta and Melilla showed that today's would-be immigrants are more resolute, more organised and more numerous than ever before.
"On Thursday, five were killed trying to force their way through Africa's only land route to Europe. Eight died in total in September. Survivors tell of death-defying odysseys across Africa, with many risking drowning in packed, rickety launches that wash up on Spanish beaches two or three times a week.
"Last week, thousands of strong, young men at the razor-wire frontiers of these half-forgotten Spanish possessions launched their most spectacular raid yet upon fortress Europe. Up to 600 Africans stormed Ceuta's barbed perimeter using primitive ladders improvised from branches lashed together with belts. Last Tuesday and Wednesday, similar human avalanches assailed Melilla to the east. Scores were injured, hundreds got through, and thousands remained to try again."
These economic migrants, President Mbeki said, would have traversed many, many countries to reach Morocco, far north, and finally travel to Spain and Italy, another European country close to Africa. This migration creates a sense of being swamped, which prompted a former Italian Cabinet Minister, to advocate the use of maximum military force to stop the "invaders", saying: "Illegal immigrants must be hounded out, either nicely or nastily..." In some of the public comments that have been made calling for the tightening of South Africa's borders smacks of this drivel. We would condemn it when it emanated from an Italian right-wing minister as we would if it emanated from a South African citizen.
Events such as the Jeppestown shoot-out emphasise the fact that crime has no borders and, as such, it requires cross-border solutions and cooperation between countries. Furthermore, it requires that the crime-fighting mechanism be strengthened, including through further enhancing the capacity of our law enforcement agencies to deal with crime, regardless of who committed it and from which country they originate. The police services must establish strong, corruption-free, relations with migrant communities to assist in rooting out the criminal elements among them. Immigrant groups in South Africa must undertake their own responsibility willingly to offer such cooperation with the police, bearing in mind that criminals do all migrants a major disservice and imperil their stay in South Africa. It is thus in their interests to cooperate with the local police services to stamp out crime and corruption. It is not fair to many migrants in our country that they all be tarnished by the criminal acts of a few.
Another dangerous assumption made through statements like that only tight border control would deter crime is that only African foreign nationals account for all the crime committed by foreign nationals in South Africa. This is obviously wrong, as those who commit the most dangerous and organised crimes in our country are also from Europe and Asia. Africans are the most visible because of our stereotypes on the one hand, and the fact that most of us interact on a daily basis with working class migrants whom we see on the streets of our major cities and residential areas. The big dogs live in the exclusive suburbs and use all manner of sophisticated fraud to travel and live anywhere legally.
The experiences of the US, Spain, Italy, France and other European countries suggest that no country has succeeded to stem migration by shutting its borders from illegal migrants. Mexicans and other Latin Americans jump high electric fences and evade US guards to reach the US. Africans construct make-shift boats to sail across the Mediterranean sea; they swim across rivers with vicious crocodiles or brave the wild beasts crossing reserves to arrive at their destination in the hope that this would bring them and their families long-sought relief from poverty. As President Mbeki said, the international media continues frequently to tell the tragic story of many unarmed Africans who seek "to enter the Iberian Peninsula and Western Europe floating over the Mediterranean on inflatable rubber dinghies" in order "to work as underlings in a modern Europe that putatively offers them the possibility to earn the meagre wherewithal provided by a low wage, which would determine whether they live or die".
Migration is not a new phenomenon; it has been happening for centuries. During this epoch of globalisation it is reasonable to assume that it shall intensify. Historically, migrants have had a tremendously positive impact on the cultural, socioeconomic and political institutions of the countries in which they settle. Everyone must simply open their eyes and rid themselves of the heavy chain of prejudice hanging around their necks to be able to see the positive impact that the migrants can bring. Migration has also a major impact on the national question in every nation state, as they lead to population increases and bring new elements that make the national question ever-more complex.
Many developed countries, confronted with these largely working class migrants erect fortresses of all sorts to prevent them from entering their countries. This explains the class realities of international migration, which, when the gender aspect is added, makes it clear that the process be properly managed. Migrants are vulnerable in their countries of origin, during transit and in the countries of destination where they settle.
Why should South Africa join the band of countries who, like King Canute, are hell-bent on staving off the ever-approaching waves of the sea? The challenge for South Africa, southern Africa, Africa and all other countries experiencing large inflows of migrants is to move away from control and prevention towards the management of migration. In a situation where people are prepared to undertake hazardous journeys, including scaling the high security fences that surround Europe and the US, and where undocumented migrants continue to rise regardless of these efforts, does it make sense to persist to seek to control migration? It would seem that multi-lateral and multi-national multi-stakeholder efforts are required to deal with this challenge, including that which is posed by the criminal element that commits crime across borders.
The demand that the Department of Home Affairs must stop illegal migrants from entering South Africa will fail like the European and US efforts failed because they do not address the fundamental issues that have to do with migration. The problem caused by foreign criminals must be dealt with under our crime prevention and combating strategies, so that we do not fight short-sightedness by removing our teeth.
More comprehensively, the New Partnership for Africa's Development (NEPAD) and other related sustainable development initiatives are intended precisely to help with the management of this challenge of international migration. The African poor who migrate, mostly vulnerably without proper documents, facing the danger of death, prison, deportation or xenophobia, seek only to serve as lowly so that they and their families may escape poverty. In the long term, and on a sustainable basis, development provides the greater hope that migration may be alleviated and thus better managed. Development would alleviate, on the one hand, the greater impetus for migration and would, on the other, create conditions for most countries to be able to accommodate the migrants. Most people are intolerant of migrants because of their own socioeconomic conditions. However, most countries tolerate, welcome and recruit skilled and wealthy migrants. Therefore, it is the challenge posed by working class and women migrants that must be dealt with holistically, not merely by shutting down borders, or hoping that vicious oceans and wild beasts will stop migrants.
South Africans have to understand the enormous historical political and moral responsibility that we bear in Africa in the campaign to eradicate poverty, underdevelopment and poor governance, which would make it unnecessary for the African poor to risk so much in search for a better life elsewhere. They must also understand that this will be a long haul and a difficult project. It will require understanding, tenacity, solidarity and hard work on our part as a people.
There are many efforts to pursue North-South development partnerships, as well as South-South and African partnerships. There are many efforts to manage migration all over the world. South Africans must understand the multilateral agreements their country has entered into with other southern African states to facilitate the free movement of people throughout the region. This means that even those with criminal intentions will be able to move more freely throughout the region. Migration policy is never designed with criminals in mind, but with law-abiding citizens in mind, in a world where goods and capital have gained absolutely free movement. The entire region has a responsibility to cooperate to fight the global criminal element, as recent events in South Africa obviously suggest.
The best way to enhance the common welfare and the defence of our self-interest is to step up our development efforts. We must have sufficient political will to end the poverty that drives thousands of Africans to walk across the length and width of our continent, into far away places as Europe. To quote President Mbeki's letter again: "However, despite the casualties, and many others that go unreported, including those who perish as they try to cross the Sahara and the Mediterranean, the millions of the poor of the south are massing in the forests, on the hills and the sea shores that surround Fortress Europe. Their numbers will continue to grow. They will persist in the effort to use their bodies as the assault force that will break down the walls of the Fortress that is maintained to guarantee the privileged lives of the rich, and insulate them from the pressing demands of the poor". The same is true for South Africa and other countries in Africa perceived to be better off.
The poor will not ride away, cower or simply lie down and die. They will keep coming, despite the physical barriers, and will keep crossing forbidding deserts, wild animal reserves and menacing seas and rivers.
** Malusi Gigaba is a member of the ANC National Executive Committee. |
