When does exercising the right to development, as envisioned by a sovereign government, conflict with human and peoples’ rights (HPR)? More specifically, is this conflict, if it can be proved to cause greater damage than benefit, potent enough to halt national development, usually pitched in the name of the greater good?

Where do we draw the line? Who decides? On what basis?

Recently, the Tanzanian government, motivating for the US$480 million 800km ‘Superhighway’ through the Serengeti National Park, learned the hard way that the architecture of development has to be placed in the context of rights talk, extending to the panoply of ratified HPR instruments – national, regional, continent-wide, and even international. Failure to do so arguably pits justiciable rights, defined and enforced by various layers of the law, against notions of ‘one-size-fits-all’ development.

Last year, the complainants, the Africa Network for Animal Welfare (ANAW) filed a lawsuit with the regional powers – the East African Court of Justice (EACJ), seeking to restrain the proposed construction, claiming that such would constitute, ‘irreparable and irreversible damage to the environment of the Serengeti National Park and the adjoining and inseparable Maasai Mara Game Reserve in Kenya.’

The EACJ is the legal mechanism through which conflicts between EAC members are resolved, using the instrument of the Treaty for the Establishment of the East African Community (EAC) – which ANAW claims the Tanzanian government stands in violation of.

The group is attempting to prevent the Tanzanian government from:

‘constructing, creating, commissioning or maintaining a trunk road or highway across any part of the Serengeti National Park…degazetting (removing) any part of the Serengeti National Park for the purpose of upgrading, tarmacking, paving, realigning, constructing, creating or commissioning’ the highway, and ‘removing itself from UNESCO obligations with respect to the Serengeti National Park.’

This, they hoped to accomplish, through the interim order ceasing development as well as a permanent injunction. ANAW attorney, Saitabao Mbalelo, dismissed the notion that the suit vied to undermine the government’s ‘right to development’, contending instead that the way in which the right was exercised unlawfully infringed on the Treaty, constituting the root cause of the problem.

The Tanzanian government countered that the proposed highway was firmly within the government’s sovereign right to determine how such would occur within national boundaries.

‘Nothing can prevent a sovereign state from undertaking development of infrastructure within its boundaries and the EACJ does not have jurisdiction to grant the declaration sought,’ said Tanzania’s Yohan Masala.

The government further claimed that the EACJ lacked the mandate to issue the permanent injunction, stating that the EACJ’s regional authority was limited to interim injunctions only.

While acknowledging the government’s right to development, the EACJ ruled that ANAW was fully within their rights to refer the legality of the case to the regional court. Justice John Mkwawa, citing Article 1, 23 (1) and 27 (1), affirmed the substance of the suit, regarding the ‘legality of any act, regulation, directive, decision or action of a Partner State’, confirming also that it was within the Court’s power to issue a permanent injunction.

As the terms of the Treaty requires the Tanzanian government to stand accountable for potential trans-boundary impacts, ranging from shared ‘common’ resources to destructive social and environmental impacts, the Court’s decision is final.

The case constitutes one of several examples where ‘rights talk’ has torpedoed ‘the right to development’ where such was devised exclusively of crucial considerations, extending from cultural to economic rights.

KENYA: DEVELOPMENT TALK, WRONG WALK

Most notable was the recent landmark decision by the African Union to recognise the rights of Kenya’s displaced Endorois peoples, by endorsing the stance of African Commission on Human and Peoples' Rights (ACHPR).

Four decades ago, in 1973, 20,000 semi-nomadic pastoral Endorois, residing near Lake Bogoria, were evicted by the Kenyan government to facilitate the development of a tourist resort and game reserve. Not only did the Kenyan government consign these Kenyan citizens to a class of landless squatters, mired in poverty and inequality, but under the guise of development, deprived them of compensation for the value of the land, dismissed religious and cultural ties to the land, and undermined their socio-economic means of survival.

The Endorois, supported by NGOs such as Witness and the Centre for Minority Rights Development (CEMIRIDE), took the case to the African Commission on Human and Peoples' Rights (ACHPR), representing the Charter legally upholding first and second generations rights for Africans through ratification by African governments.

After years of deliberations, in May 2009, at the ACHPR’s 45 session in Banjul Gambia, the Commission issued the declaration that the Kenyan government had violated the rights of the Endorois on several counts, disproportionate to any perceived or public or general interest ie: development concerns.

This included, claimed the Commission, displacement from ancestral land, failure to provide compensation for property, violation of the community’s pastoral enterprise, violations of the right to practice culture and religion, socio-economic disturbance, and the disruption of the process of development of the Endorois peoples, whose welfare should have been central to the development of the tourist resort, rather than a hindrance.

The Endorois and their partner NGOs presented the argument that Article 14 of the Charter – the right to property, was fundamentally violated as for centuries, ‘the Endorois have constructed homes, cultivated the land, enjoyed unchallenged rights to pasture, grazing, and forest land, and relied on the land to sustain their livelihoods around the Lake.’

That is, while the strictures of legalism did not allow for formal recognition of customary collective ownership, the Endorois, ‘exercised an indigenous form of tenure,’ reflecting, ‘traditional African land ownership, which was rarely written down as a codification of rights or title, but was, nevertheless, understood through mutual recognition and respect between landholders.’ The plaintiffs argued that even under colonial rule, the British recognised the Endorois’ rights to occupy and use the land and its resources.

Last year, when the AU upheld the decision of the ACHPR, the Kenyan government – which had prior failed to address the wrongs, and compensate accordingly, became immovably bound to the agreement which they had ratified.

That is, the Kenyan government could no longer rely on the use of the language of transformation to exclude citizens from the processes of development and ‘externalise’ the impacts of social, economic and cultural rights deprivation emphasised in the ACHPR.

In the context of global ‘rights talk’ the ACHPR’s focus on the class of rights (or entitlements) known as ‘second’ generation ie: economic, cultural and social, as well as third generation rights i.e.: Group and peoples’ rights, constitutes a revolutionary position.

Developed nations, especially those comprising the world’s super powers’, namely the US, actively discourage second generations rights – considered ‘soft’ and ‘positive’ laws, knowing full well that such would require a political redistribution of resources in a national and international context. These governments opt for the class of rights known as first generation (political and civil), enforcing a minimalist legal approach toward the fulfillment of human and citizens’ rights.

AFRICA: THE RIGHTS REVOLUTION

In his seminal paper, ‘What Future for Economic and Social Rights’, David Beetham draws attention to the barbarity of rights deprivations, writing, ‘By the same token, our paradigm for a human rights violation is state-sponsored torture or “disappearance” rather than, say, childhood death through malnutrition or preventable disease.

‘The normal processes of the international market, which tend to benefit the already advantaged, have been intensified by the effects of deregulation and the cutting of welfare provision, to the further disadvantage of the deprived in many societies. There has indeed been a politics of redistribution at work, but it has been a redistribution from the poor to the well-off, within and between countries: an upwards flood rather than a “trickle down”.* In the process the capacity of governments to control their own economic destinies has been significantly eroded, as collective choice has been displaced by market forces, and economic policy has been conducted under the scrutiny of what ‘average opinion’ in financial circles ‘believes average opinion to be.’

He quotes the acknowledging statement of the UN Committee on Economic, Social and Cultural Rights conference, held in Vienna in 1993, ‘The shocking reality…is that states and international community as a whole continue to tolerate all too often breaches of economic, social and cultural rights, which, if they occurred in relation to civil and political rights, would provoke expressions or horror and outrage, and would lead to concerted calls for immediate remedial action. In effect…violations of civil and political rights continue to be treated as though they were far more serious and more patently intolerable than massive and direct denials of economic, social and cultural rights.’

While first generation rights may be fully justiciable as ‘hard’ laws – and proposed as the panacea for Africa’s ‘democracy deficit’ – the continent’s most revered liberation heroes, including Mwalimu Julius Nyerere, readily affirmed the very same: That without the basic means of survival, political and civil rights were derisory by nature.

This is especially the case in the context of maldeveloped areas inhabited by peoples like the Endorois, where those most vulnerable, such as rural and indigenous peoples, are least able to access the institutions through which rights should be accessible and implemented.

It is, surprisingly, Africa’s unique historical realities – characterised by the brutality of rights deprivation in the context of Europe’s ‘colonial’ project, as well as the dire need to provide means of material sustenance, that compelled several African leaders, including The Gambia’s former President, Dawda Jawara, to catalyse the legitimisation of the full rights spectrum.

In fact, years prior – in 1978, Jawara stated to the 33rd Session of the United Nations General Assembly, ‘With the attainment of self-determination and independence, it would be ironic indeed if the freedom from the defeat of colonialism, should be denied to our people by our own leaders. After centuries of a deliberate policy of dehumanisation, subjugation, and oppression, the minimum our people expect and must have is the full enjoyment of their political, economic, social and cultural rights…It should be the duty of all us to ensure that the people enjoy their rights…’

Certainly, the move to institutionalise human rights in Africa began long before, in the 1960s, when Africa’s independent nations became members of the UN, ratifying the 1948 UN Declaration of Human Rights. Between 1960 and 1979, an estimated 12 meetings focusing on a range of human rights issues took place across Africa.

But it was not until 1979, in the wake of bloody dictator Idi Amin’s brutal slaughter, that the continent’s primary political instrument, the OAU, began to sit up and take notice. In that year, during the OAU Summit held Monrovia, Liberia, the African Declaration of Human Rights was adopted.

According to the article, ‘The Organization of African Unity’ (1979), though democratic states like Senegal played a role, ‘much of the credit for making it a priority belongs to The Gambia’s Jawara, who runs a small model republic, and has placed himself at the forefront of the human rights campaign on the continent.’

Immediately following the OAU Summit, African governments led by The Gambia, motivated for the establishment of a permanent human rights commission. Legal experts from across African met to draft part of what would become the foundation of the Charter from November 25 to December 2 1979. Participants agreed to convene in The Gambia’s Banjul, seat of the ECOWAS chair, and a critical hub that facilitated the intervention by ECOMOG in Liberia.

WHY ‘BANJUL CHARTER’?

Political conflicts prevented development of more than a handful of articles (just 11) during the meeting in June 1980. But judging from his statement to OAU General Assembly, in Sierra Leone, the following month, Jawara was realistic about the process: ‘The United Nations General Assembly of Human Rights was adopted by the United Nations General Assembly more than 30 years ago... the subsidiary covenants on civil, political, economic and cultural rights were adopted some 20 years later. It took another ten years before the instruments came into force.’

Nonetheless, The Gambia pushed to host the 2nd Ministerial Meeting on the Draft Charter, in 1981, which brought about the full development and conclusion of all 68 articles.

In recognition of Jawara and The Gambia’s role, various relevant authorities proposed titling the draft, ‘the Banjul Charter’, with the OAU thereafter officially placing the office of the African Commission in Banjul. The Gambia Times (1988) quotes President Kenneth Kaunda as stating, ‘Addis Ababa is synonymous with the OAU; Banjul is synonymous with the promotion of human and peoples.’

But this is the case no longer: Though Banjul is still officially ‘home’ to the Commission, in 1994, the Armed Forces Provisional Ruling Council (AFPRC) came into power after a bloodless coup, removing Jawara from power for the first time in 24 years. AFPRC was initially said to be supported by a significant percentage of Gambians, frustrated with the lack of development in The Gambia. But with the coup, and military control, came suspension of aid and frosty relations with important multilateral powers like the World Bank.

The coup came about when Gambia lost its primary protector: Neighbouring Senegal, after Dakar, in 1993, decided to close transit borders to use of The Gambia as a ‘black hub’ of trafficking, eroding Senegal’s fiscal base. It was Senegal that provided Jawara with the geo-strategically critical political and military force protecting Africa’s smallest mainland nation from internal and external threats. In 1981, for instance, Senegal militarily intervened to protect Jawara’s regime from an attempted. Yet until 1983, the country did not have the resources – financial and otherwise, to create and maintain a national army. It was not until 1990, that a small band of 800 was finally stitched together.

From 1981-1994, for instance, over 85 per cent of Gambia’s development programme was financed by external sources – 75 per cent in the form of loans. But the flipside of loans was debt and Gambia (US$136 million in 1981 to US$245 million in 1985). By 1986 this debt represented 229 per cent of GDP. Foreign loans declined from US$19 million in 1984/5 to US$11 million in 1985/1986 and development grants fell from US$9m to US$5m during the same period.

In reality, the Gambia’s political vulnerability and economic dependence informed much of the government’s foreign policy, of which ‘human rights promoter’ was part and parcel. Jawara’s boycott of OAU activities in 1982, for example, was largely because of the belief that Libya, under Gaddafi, financed the attempted coup. Jawara was incensed when the OAU did not take a hardline on Gaddafi.

Unlike many African governments, the Gambia also refused to recognise many liberation movements, even those long legitimised by the majority of other African states such as the MPLA. When the OAU – alongside 50 states, recognised the SADR with regards to the Saharawi territory, despite the latter enjoying majority support from the population, controlling over 90 per cent of the territory and pledging support for UN and OAU charters, Jawara’s regime refused to stand against Morocco. At the time, and until today, Morocco’s human rights violation in this region is well known.

This reveals that at least a considerable factor driving The Gambia’s role as Africa’s HPR prophet, was a canny strategy to tap into foreign donor wallets, rather than a thorough commitment to ‘rights’.

WHEN DOES THE EARTH HAVE RIGHTS?

Initially, in spite the revolutionary nature of the rights enshrined in the ACHPR, modeled on the UN Human Rights Committee, the Commission, from the outset, held aspirational, rather than binding powers.

It was not until mid 2004 when the Charter was given teeth after African states agreed to integrate the African Court of Justice with an African Court on Human and Peoples Rights, merging to become the African Court of Justice and Rights. The new court required a similarly new rationalisation: The Draft Protocol on the Statute of the African Court of Human Rights and Justice (adopted in July2008).

What makes the Court powerful is that maintains jurisdiction over all human rights issues and instruments, whether African or international in nature, extending access to NGOs, individuals, States party for and against complaints, States who citizen is a victim, the Commission itself, intergovernmental organisations, and other parties relevant or holding an interest in the case.

But what of the rights of the ecosystem, especially in the context of the climate crisis, already exacerbating continent-wide inequalities, catalysing mass ‘eco-refugees’?

Though genocide is a well-established justiciable atrocity, the same cannot yet be said for ‘ecocide’, whether from ‘development’ strategies such as mega-dams, water depletion and pollution, externalised impacts from mining including acid mine drainage (AMD), extraction and use of fossil fuels, exploitation of oceanic fisheries, gross agricultural ‘run-off’ and factory farming, or even just the environmental impacts of war, such as nuclear weapons or carpet bombing.

Celebrity intellectuals such as Jeffrey Sachs and Jared Diamond often use the convenient anthem of ‘environmental determinism’ to wish away the root causes of poverty, rather than identify the correct causes of maldevelopment – an inequitable global financial and trade architecture sustaining inequality.

But moves are afoot to alter this unjust status quo: thought leaders like Cormac Cullinan, an environmental lawyer and author of Wild Law, have long since proposed locating ecosystems – or the earth, at the center of the world’s legal system. According to Cullinan, whose book was published a little under a decade ago, ecosystems, from rivers to forests, have the legal right to exist, live and thrive. In just a few years, countries like Ecuador have already recognised the innate rights of ecosystems. Doing so upends the right of man-induced exploitation, including the symptoms of such, evident in the climate crisis.

Other countries, like Bolivia, also made history by recognising 11 ecological rights: ‘the right to life and to exist; the right to continue vital cycles and processes free from human alteration; the right to pure water and clean air; the right to balance; the right not to be polluted; and the right to not have cellular structure modified or genetically altered,’ reported the UK’s Guardian in an article titled, ‘Bolivia enshrines natural world's rights with equal status for Mother Earth.’ The article continued, ‘Controversially, it will also enshrine the right of nature "to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities.”’

Yet, like Tanzania, the Bolivian government led by the left-talking former union leader, Evo Morales, has proposed a $US410 million ‘highway’ through the Amazon’s 3.4 million acre Isiboro Sécure Indigenous Reserve and National Park, also known as Tipnis.

While Bolivia, one of the poorest countries in the Western hemisphere region, is known for the Pachamama or ‘Mother Earth’ movement, it is also dependent on the exploitation of oil, gas and other finite extractive resources. The country also hosts a large and underdeveloped rural majority.

Similar to the Gambia, earnestly peddling the country as an icon of ‘rights talk’, Bolivia too struggles with inconsistency innate to the characteristics of economic woes and political vulnerability.

Thus, though ecological rights are crucial as the next logical and necessary step toward protecting and promoting an equitable justice system, it presents difficult questions that, once again, strike at the heart of the fundamental debate between conventional notions of development and human rights as they are accessible to peoples.

If the Africa were to ratify the ‘Declaration of Natural Rights’, mining in South Africa – producing lethal acid mine drainage (AMD) in a water-scarce country, would not logically be allowed to continue - ditto for oil and gas extraction in Nigeria’s bloodied Niger Delta, and a host of other replicated circumstances.

This would, by default, remove the power of rent-seeking elites, eager to cash in on unearned resource revenue, and with it, the elimination of various forms of threats affecting ecosystems and peoples, including corruption, militarisation (often financed by resource wealth), war, displacement, and illicit flight, to name a few.

But it would also kick away what is perceived to be a crucial development ladder in Africa: exploiting resources for development revenue.

Yet, as the World Bank itself admitted in a report titled ‘Where is the Wealth of Nations’, assessing the natural, produced and intangible wealth of 120 nations, even disregarding hard figures of illicit flight – in Africa, estimated at US$148 billion minimum annually, many African nations, including South Africa, are left with a negative ‘genuine savings’ rate, after resources have been exploited.

Already, it seems, before any climate crisis, civil wars, ecological scarcities, and resource-fueled wars, nations that are democratic like South Africa, who consider the vast national resources (gold, coal, diamonds, platinum etc) as the financial fuel for development, are at a loss. Meanwhile, countries like Nigeria – exploiting oil under the guise of development, but losing over US$400 billion to illicit flight since the 1960s, have received no benefit, only suffering.

Africa’s current status – though emitting just 3 per cent of global carbon dioxide (significant quantities of which are caused by Shell’s gas flaring in Nigeria) is that we stand on the frontline of climate change, and the continent declared most likely to bear the harshest consequences.

Strangest of all is that most of the circumstances resting at the base of global misery: Unemployment, poverty, ecological degradation, and lack of access to resources, are produced by these systems that are interlocked.

The climate crisis, like poverty, therefore, requires a systems change, rather than a solution that is isolated from the full context of the problem. And this system change, it seems, can only be produced if a clean break occurs i.e.: Casting aside ‘reform’ in favor of rights through redistribution of power and resources.

Were the African Union to endorse natural rights, and take a stance forbidding the extraction of any fossil fuels, well, it would seem a very natural progression of the continent’s already revolutionary path toward an inclusive justice for all.

Africa would then take its place as the birthplace of humanity in a world where too much of mankind has consigned one another – as neighbours, communities, nations and even entire continents, to the junk pile.

The question of rights and ‘right’, appears, after all, to be very straightforward indeed.

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