THERE was a time when human rights were said to be a Western concept that put emphasis on the individual at the expense of the community and the social environment and as such was not applicable to, or had no meaning in Africa.
Today most countries say they are in favour of human rights practice and observance.
There are two reasons for this change of heart. Firstly, it simply reflects a set of conditions and a global vocabulary.
Secondly, there is a different perception of human rights. People are no longer willing to be arbitrarily detained without recourse to justice and fair trial, deprivation of rights of expression, association, assembly, movement or to be denied the right to education and health.
Nevertheless the question remains, is the concept going to be mouthed and included in constitutions in order to please the international community and donors only?
Lest we forget that when leaders of newly independent African states met in May 1963 in Addis Ababa, Ethiopia, to create the Organisation of African Unity (OAU), they excluded in the OAU Charter any provision on human rights apart from some preamble declarations on adherence to the Universal Declaration of Human Rights.
They were more concerned about safeguarding their newly won independence and national sovereignty could not be countenanced. Instead, they agreed as provided in Article Five in OAU Charter, not to interfere in each other’s domestic affairs.
It was not until 1979 in the work of widespread massacres and human rights violation on the continent and as a result of mounting pressure from within and outside Africa, that the summit of the heads of States and Governments of the OAU in Monrovia, Liberia, requested the then Secretary-General Edem Kodjo, to convene a meeting of high level African experts to prepare a draft of an African Charter on Human Rights for the continent.
As a guide to their deliberations and the preparation of a preliminary draft of African Charter, the group of experts, which met in Dakar, Senegal, under the Chairmanship of Justice Keba Mbaye,was given a set of overriding principles, one of which was that they should not exceed what the African States may be willing to accept.
It is not therefore, surprising that the architects of the preliminary draft of the African Charter on Human and People’s Rights opted for a commission, which make recommendations, but not a court, which would engage in contentious litigation, a procedure thought to be contrary to the traditional African concept of law, which emphasises dialogue and reconciliation.
All African constitutions make reference to the Universal Declaration of Human Rights and the respective countries have ratified it, either through States acceding to all relevant international instruments.
Since the 1993 Vienna Conference, steps have been taken to speed up accession to these international treaties. But this does not really affect most African countries, where the major problem is not to secure the ratification of these instruments, but to know what effect they have and how commitments entered into an international level are applied.
This is the major problem concerning human rights protection in Africa.
The ability of the African commission on Human and People’s to identify and “punish” human rights abusers has been enhanced through the creation of the African Court of Human Rights.
However, these are external measures that can only be effective if full democracy is established within States and is backed by a strong political commitment to eradicate poverty and facilitate unfettered enjoyment of civil, political and economic rights.
The civic society and individuals should always have access to an assortment of remedies for human rights abuses mostly perpetrated by despots or tyrants through instruments of terror and subjugation.
Faced with the often irrational behaviour of political leadership, there is fortunately a burst of humanity that emanate from individual consciences, which organise, fraternise and act in solidarity to defend and promote human rights in the land.
This critical role is spearheaded by none other than the third sector; civic society. I will define it as third cell between the market and the state, constituting a “civil space” occupied by “public beings”, that is non-governmental and non-commercial citizens and organisations devoted to the public good.
Civil society is a historically evolved sphere of individual rights, freedoms and voluntary associations whose politically undisturbed competition with each other in the pursuit of their respective private concerns, interests, preferences and intentions is guaranteed by a public institution, called the state.
Any mature civil society exhibits at least five prominent dimensions: Individualism, privacy, market, pluralism and class. Individual is the seat of sovereign will.
As such individuals are also the sovereign components of the polity, and are defined as citizens.
Democracy and the state, exist for protecting and fostering the rights and interests that belong to individuals in civil society that is independently of political life.
Churches, political parties, trading companies are only aggregation of individual wills. Civil society yesterday, today and tomorrow must be understood as the sphere of that which is relatively, autonomously private within a modern polity.
Civil society is that set of diverse non-governmental institutions, which is strong enough to counterbalance the State, and, while not preventing the State from fulfilling its role of keeper of peace and arbitrator between major interests, can nevertheless prevent the state from dominating and atomising the rest of the society.
Civil society is a mosaic of private individuals, classes, groups and institutions whose transactions are regulated by civil law.
Thanks to civic society, barbarism and cruelty will never have the last word and I salute all those human rights advocates who have remained vigilant and resolute risking all to protect, defend and promote human rights in Africa, particularly in Zimbabwe. They constitute the tangible evidence of the vibrancy of civic society, maybe the future humanity.
In the words of German poet Holdelin: “There where danger grows, also grows that which saves.”
Civility is not a virtue we can afford to surrender or a practice we can afford to disregard.
Tamsanqa Mlilo is director at Mediation for Peace Centre, human rights activist and social commentator.