Human Rights and Good Governance in Africa: A Critical Nexus Expanding Human Rights¹

By
Hon. Justice Amina A. Augie, JCA
Justice, Court of Appeal, Benin Division, Nigeria

Introduction:

"Reassuringly enough, there is today in Africa demand for a new approach to governance. The clamour today for democracy and good governance in Africa stems from two broad reasons. First, the denial of fundamental human rights, the presence of arbitrariness and the absence of basic freedoms for the individual have in the main remained familiar traits of a majority of governments in Africa. The strain of these styles of governance has prompted a demand and a clamour for new approaches to the resolution of various national questions. In consequence, Africans are clamouring for greater responsiveness on the part of their political leadership, respect for human rights, accountability and a two way flow of information between the people and their leadership. They are also clamouring for an adequate legal system and for the laws and the independence of the Judiciary and a free press, which together can serve as a bulwark against the oppression of government, and especially a corrupt or unpopular government".

- General Olusegun Obasanjo -²

The above statement of General Obasanjo in 1994 captures in a nutshell the essence of this paper on "Human Rights and Good Governance in Africa". Human rights and Good governance are intrinsically interwoven in that the latter cannot be achieved without respect for the former and human rights cannot be enforced and observed without good governance. Certainly, the failure and inability of the postcolonial State to expand and protect the scope of human rights in Africa has generated critical issues on the contemporary political landscape. This paper will attempt to highlight the nexus between human rights and good governance, discuss the role of civil society in achieving and consolidating good governance, and examine the constraints militating against the effective performance of its role as watchdog of society.

The Concept of Human Rights

Since the adoption of the Universal Declaration of Human Rights in 1948, there has been a continuing concern for the protection of certain basic rights, which a man is entitled to enjoy by the mere fact that he is a human being. The concept of human right is as old as human society and was evolved, to a large extent as an instrument of revolt against tyrannical Government. "Rights of man" formed the national weapon of those struggling to limit the power of rulers. As Hon. Justice P. N. Bhagwati,³ observed-

"There was a time when the standard of divine law as revealed by God to man in some Holy Scriptures was widely applied and served to confer legitimacy upon laws enacted by rulers. But over the years, religion as a standard of values began to lose its vitality and significance. Morality, though undoubtedly important and certainly complementary, was also found unable to solve the complicated problems of modern society and to provide a standard against which to judge the laws enacted by Rulers. Some other ground had to be found to support a standard against which to judge the rulers' laws and thus ground was provided by the concept of human rights which for the first time found its formulation conceptually in the United States Bill of Rights and was then developed as a universal concept in the Universal Declaration of Human Rights and elaborated in the various international human rights instruments which followed the Universal Declaration." (Italics mine)

Today, the concept of human rights is closely linked to the "state" or an organized society with a government, and refers to the relationship between the individual and the state or its government; their rights to political participation, the freedoms that the individual should enjoy and their claims on the state with regard to the provisions of basic needs of life, education, health, among others. In other words, States and Government have a primary responsibility to protect, recognize, observe and expand the frontiers of the fundamental rights of citizens and other human beings within their territory and jurisdiction. If any State or Government fails to discharge this responsibility, it may be liable to forfeit its legitimacy and the right to command the obedience and loyalty of the citizens.

Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights - both civil and political rights and social and economic - generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote and fulfill these rights. At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of action. With respect to socio-economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purposes of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the resources to satisfy its need.

At a secondary level, the State is obliged to protect right holders against other subjects by legislation and provision of effective remedies. This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms. This is very much intertwined with the tertiary obligation of the State to promote the enjoyment of all human rights. The State should make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, etc. The last layer of obligation requires the State to fulfill the rights and freedoms it freely undertook under the various human rights regimes. It is more of a positive expectation on the part of the State to move its machinery towards the actualization of the rights. This is intertwined with the duty to promote. Thus, States are generally burdened with the above set of duties when they commit themselves under human rights instruments.⁴

Human Rights in Africa

The state of Human Rights in most African States is without doubt, dismal, to say the least. The contrast between the paper declarations in Constitutions and laws and the actual practice is quite staggering. The Law of Human Rights is at one extreme, whilst the practice of African States is at the other. The vast majority of the citizens in virtually all African Nations face difficult odds in the enjoyment of their rights and freedom from intolerable oppression, exploitation and destitution. As Alemika put it,⁵ to the African Rulers, the citizens "are nothing, just face-less tatterdemalion crowds who are there to be manipulated and forced to do whatever the regimes want. They consider the people and the national wealth as part of their private estates and are insensitive to appeals for justice; to them justice is whatever is useful to maintain themselves in power". Thus, Mobutu Sese Seko could say⁶-

"We are often accused of violating human rights. Today it is Amnesty International and tomorrow it is a human rights league and so forth. During the entire colonial period, the universal conscience never thought it necessary to have a human rights organization when indignities, humiliations and inhuman treatment inflicted in those days against the people of the colonies should have been condemned. It is rather odd. Everybody waited until we became independent suddenly to wake up and start moralizing all day long to our young States".

However, Africa has experienced a new wave of political reawakening which in turn has engendered the birth and return to democracy. The era of authoritarian rule, which has colored politics in Africa, is phasing out. From successful challenge of the one party of state of Kenneth Kaunda in Zambia, to the democratization effort in Ghana and the return to civil rule in Nigeria, the wave of democracy is indeed moving. However, the story of Africa is that of a continent that appears incapable of harmonizing the State interest and the interest of individuals. The tilt towards authoritarian democracy and quick metamorphosis of democrats to autocrats leads to lack of respect for human rights and makes the achievement of good governance a mere illusion.

The situation in Zimbabwe is illustrative of these problems. The attack on white farmers and the subtle Government support for such attacks portrays a gross abuse of human rights⁷. The inability of the judicial system to adequately protect the interest of these farmers portends grave danger for the country. More worrisome is the reluctance of African leaders to condemn the events in Zimbabwe. There is also the situation in Dafur, Sudan, which has escalated to a global crisis. Human Rights Watch reports of gross abuse of human rights in Dafur, as follows⁸ -

"Militia backed by the Government of Sudan is committing crimes against humanity in Darfur, western Sudan in response to a yearlong insurgency. The past three months of escalating violence threaten to turn the current human rights and humanitarian crisis into a man-made famine and humanitarian catastrophe. - - While many of the abuses are committed by the janjaweed, the Sudanese Government is complicit in these abuses and holds the highest degree of responsibility for pursing a military policy that has resulted in the Commission of crimes against humanity------"

In Nigeria, the situation may not be that bad, but there are reported cases of police brutality and extra judicial killings. The security forces are yet to imbibe respect for human rights. The military orientation, which is characterized by brutality and gross human rights abuses, still permeates the various strata of security personnel in Nigeria. The apparent lack of basic democratic tenets and respect for human rights is one of the greatest problems in the Nigerian environment.⁹ Democracy has not delivered the much-touted respect for human rights, neither has it been translated to good governance. This brief analysis represents what is obtainable in Africa. The prevailing economic hardship in Africa directly affects the realization of democracy dividends. The reform policies embarked upon by African leaders are imported and do not in any way have answers to the imperatives of our peculiarity. This further underscores the need for the civil society to step in and find adequate answers to the imperatives of an open democratic society where the rule of law and respect for human rights is adequately observed.

Good Governance: The Role of the Civil Society

For Africa, the search for good governance and development is inextricably linked to the search for or revalidation of democracy. Democracy, it has been said, is the rule of the people by the people and for the people. A democratic administration is one in which the people, all the people, are enabled to express a free choice on all matters affecting them. Democracy is not an event. It is a process, which constitutes the creation and maintenance of operational institutions and an appropriate political culture. That culture is natured through institutions that embody enhanced opportunities for political participation and competition for all citizens. Legislative institutions must exist to check the exercise of executive power and a genuinely independent Judiciary must exist to safeguard the civil liberties of the people.¹⁰

An essential attribute of democracy is good governance, which goes hand in hand with accountability and transparency. A government cannot claim to be democratic unless it is fully accountable to its people and conducts its business in a transparent manner. Good governance is therefore about the greater satisfaction of the greater number of people by ensuring - transparency, accountability, tolerance of opposing views, respect for human rights in general and the rule of law.¹¹ The key to building enduring democracy is the existence of strong, viable and assertive civil society. Organizations of civil society operate between the State and the citizenry and give structure to the representation of interest of a diverse body of the populace. It is an essential prerequisite as it facilitates the opportunity of participation in the political life for the citizens at large. In other words, popular participation leads to the creation of a strong civil society with a keen awareness of their rights and responsibilities. The people's participation provides the opportunity for them to make their own history, by articulating their views, by expressing their feelings, and ultimately, by making their demands on the State or Government.

If a break with the authoritarian background of governance in Africa is desired, and if the desired break is to be achieved, then the political activity of the people must not be limited to, or straitjacketed merely as a synonym for election of their representatives at regular periods. As Onyekpe¹² said -

"The people must be mobilized for direct involvement, beyond elections, in political administration and governance. The role of the people must go beyond coming out from the creeks, farmsteads, hunting camps, herding fields, motor parks, market places, workplaces, city slums, etc, to elect the so-called government of the people and then return to the abyss until another round of "democratic" elections. The people must be mobilized fully, in such a way that ensures that in between elections, the government is by the people and for the people". (Italics his)

The central importance of civil society in supporting the evolution of the organs of a democratic society cannot be over-emphasized. These include a free media serviced by a cadre of professional, courageous and responsible practitioners; independent Judges, Magistrates and lawyers determined to uphold the rule of law; an efficient, effective and adequately remunerated public service; and an independent and transparent Parliament, democratically elected and with a cadre of Parliamentarians that are honest. In addition, there are other components of civil society, such as, trade unions, professional associations, human rights leagues, development non-governmental organizations, women's organizations, youth associations, etc. The role of civil society in Africa is viewed from the following angles -

(a) Monitoring - This implies the systematic tracking of activities of and actions by institutions, organizations or government bodies.¹³ The purpose and focus of an organization's monitoring activities depends on the issues the organization addresses, goals and priorities it has set to address. Human Rights organizations would most naturally focus on the human rights situation and the activities of government in that regard. Budget tracking is a good example of what monitoring implies. It is the duty of civil society who work in the area of human rights to see how the funds voted for a particular project is used. Monitoring implies taking a closer look at the activities of government in order to constructively engage Government or other relevant institutions.

(b) Advocacy - Civil society has a duty of information dissemination and lobbying to push through pro-people policies. Lobbying or use of public campaigns depends on the particular conditions in the country and its human rights and civil society groups. There is need for strategic planning to enhance productive information sharing¹⁴. Letting the people know of what is happening around them.

(c) Defending Human rights - This is one of the fundamental functions of civil society organizations. Most individuals view Civil Societies as the bastion of human rights. History has shown that literacy and awareness of human rights are complimentary. In a continent where more than 50 percent of the population is illiterate, it behooves on the Civil Society to protect the rights of the larger society. This can be achieved through litigation, strike and other lawful means of protest. A virile Civil Society begets a free society.

(d) Use of International Mechanism - Civil society organization has the responsibility of putting to good use international mechanism like the NEPAD peer review mechanism, communication to the African Commission and other mechanism. As watchdogs, they are in a good position to bring to the international forum the activities of their governments. Also they can judge the performance of their government with international standard taking for instance, the NEPAD peer review mechanism. There is constant need for civil society organizations to beam the searchlight of the international community on their country. That way there will be a parallel view of whatever their government is selling to the world.

(e) Mobilization - Effective Civil society involves the people for whom it advocates. Irrespective of the area of focus, mobilization is a key component of any progressive activity of civil society. Mobilization is the process of motivating and coordinating people for a purpose. Human rights mobilization involves working with affected populations to amplify their needs and concern.¹⁵ The stronger the links between an organization and a community, the greater the organization's ability to advocate for the community's needs.

The history of democracy in Africa can never be complete without due acknowledgement of the effort of Civil society organizations in achieving a semblance of democracy. They were among the forces that dislodged entrenched authoritarianism in Africa and brought about the beginning of formal democracy in the early 1990s.¹⁶ The activities of civil society organizations are mostly determined by the prevailing needs of the society. For us in Africa, the challenges are ever changing and the ability of civil society organizations to change with the tide is therefore commendable.

In the 90s, civil societies were mostly confronted with the problem of dislodging anti democratic leaders and autocracy. In Zambia, the Congress of Trade Unions successfully challenged the three-decade incumbency of Kenneth Kaunda. Union activism was also pivotal in Mali and Niger. Student protest against economic mismanagement and the accompanying economic crisis in Benin, Mali and elsewhere were important in setting the stage for pro-democracy activism in those countries.¹⁷ Significant contributions to democratization have also come from Christian churches and their national organizations, in some African countries. The National Council of Churches of Kenya was in the forefront of opposition to the authoritarian rule of Arap Moi. In Zambia, Malawi and Nigeria the 90s saw Churches rising up to challenge authoritarian regimes. The engagement of the then dictatorial regime of Abacha in Nigeria by the civil society saw to the return to democracy in Nigeria. Civil society organizations were so vibrant in Nigeria that they constituted a viable opposition to the military dictator.

In Ghana the return to democratic government by the Rawlings regime was attributable to international and local pressure engineered by civil society organizations. All around Africa third sector institutions during pre- democratic era have played the role of progenitors of democratic rule. The number of communications from civil society organizations to the African Commission on Human Rights is quite enormous. They were the voice of the oppressed in Africa. Majority of the African nations now practice democracy in one form or the other. This wave of democracy does not detract from the fact that in most jurisdictions, social justice, rule of law and economic development are yet to be realized. As Hon. Paul Muite so aptly described it¹⁸ -

"The African Continent is a true political and social mosaic. There are countries that are making a real move towards democracy. There are others in which the democratic experiment started off hopefully but are now sliding back into the old ways of autocracy and repression. In others, the political, social, and State infrastructure has collapsed. Yet, in a few others, chaos, genocide and terror are predominant".

Constraints to Civil Society Efforts

Civil Societies are catalysts for development and defenders of public interest, and their non-alignment with government affords them a clear and constructive perception of issues. A constructive oversight function of civil society keeps the government on its toes and in some localities is the only source of opposition to the government. The role of civil society is not just in confronting government but also in complementing government role. However, a lot is yet to be achieved in this regard, as the mechanisms required for the good fight have not been effectively utilized. Various recommendations and declarations aimed at addressing civil society organization's institutional problems have been made in recent years. Mobilizing the action required has, however remained a daunting challenge, as civil society organizations have operated under severe constraints, notably the detention of their members, interference with foreign travel, public vilification by government, surveillance by security agencies, and the obstruction of their legal efforts etc. Some other constraints are as follows-

Inadequate Justice Delivery System

The justice system has been defined as the last resort of the common man. It is the sector that actually protects and harmonizes the varying interest of the members of the society. The justice system has been the major recourse of the human rights community in the enforcement of human rights. Litigation has been identified as one of the key means of protecting and enforcing the rights of individual. No other institution of the State is bestowed with the duty but the Courts and other ancillary institutions. Most of the monumental achievement of the human right community the world over has been achieved through the Courts. Sadly, the justice delivery system is bedeviled with problems. These problems have drastically slowed down the work of the system. Governments in some countries do not fund the courts. Judges are poorly remunerated and this destroys their zeal to perform. Predictably it also makes them susceptible to corruption in a bid to cut corners and make some money.

Again, some of the Rules of Court applicable in most countries of Africa encourage delay. The procedures are so clogged and technical obstacles sometimes swallow up the case. Long adjournment and insufficient number of Judges continue to delay justice. The cost of financing trials is going up and it becoming hard for the civil society organizations to finance and adequately prosecute cases. Government influence in the judicial process sometimes tends to suggest unfairness in decisions in cases in which the government has interest. Faced with the problem of a defective justice delivery structure, the work of civil society organizations greatly hampered.

Unresponsive Government

Civil society organizations have no political power to effect policies; they can only act as a pressure group. As such, a responsive government is needed to give effect to the activities and efforts of the civil society. What is obtainable in Africa is that State authorities most times view third sector institutions with mistrust. They are treated worse than opposition parties. This antagonistic attitude does not allow civil society to constructively engage government. According to Professor Ihonvbere¹⁹

"The main human rights issue in contemporary Africa is what to with the non-hegemonic, unstable, repressive and exploitative postcolonial State. The State has been more a weapon of intimidation and abuse than one with a sense of nation and mission designed to revolutionize the social formation, protect the citizenry and promote an enabling condition conducive to popular participation in development. In fact Africans relate to the State as an arrogant, wicked, aloof, violent, and biased force that must be avoided, manipulated, cheated, and dismantled as opportunity permits. Its total failure to improve on the conditions of the people, effectively mediate conflicts, protect the rights of the citizenry, and articulate a viable consistent agenda for growth and development has reduced the worth of the state in the eyes of the people. The State is simply an enemy of the people with structures that are biased - - ".

Examples abound in Africa where government goes out its way to stifle the voice of civil society organizations. Cases of political prisoners in Africa are largely stories of civil right activists who dare to challenge government.

One can say that the greatest problem of civil societies in Africa stems from government intolerance. The primary focus of civil society in this kind of environment is survival. This affects drastically their input to Governance. As Professor Ihonvbere also pointed out, to the vast majority of people in Africa, the State, its institutions and custodians are largely irrelevant to their quest for survival. Thus, human rights discourse and activism cannot be initiated without a direct and strong attention being paid to the nature, composition, legitimacy and relevance of the State. The truth is that if the State were transparent, accountable, sensitive, and democratic, human rights would not be violated. There is therefore a direct correlation between a badly constituted and structured State and human rights abuse. An unstable, uncertain and undemocratic State cannot protect human rights. This means that the nature and character of the State has direct implications for the human rights environment in any nation.²⁰

Ethnic violence

The story of Africa is a story of a diverse culture and people who are always in conflict. There are always stories of civil unrest in one part of Africa or another. Ethnic distrust and rivalry has continued to slow down the pace of development and realization of good governance in Africa. The nations' wealth is most times spent in quelling one uprising or another. From Nigeria to Zimbabwe, Rwanda to Sudan, Liberia to Democratic Republic of Congo, cases of ethnic conflict and civil unrest are reported. The nations are the more impoverished and human rights are trampled upon. In this kind of conflict, human rights issues are not properly addressed and a lot of abuses are recorded. In most cases civil society organizations are co-opted into the conflict and the chain of distrust widens. In some cases, the human right communities lack the capacity to intervene and their work in the area of human rights protection suffers. Again violence in Africa destroys the economy and the people are all the more impoverished. Economic and social rights are reduced to mere theories and the continent is worse off for it.

Lack of funds

Civil Society organizations are non-profit organizations. Every thing they do is tied to donors and grants from Government. Ironically, activities of the third sector institutions are such that require mega funds. In the absence of adequate funding, civil society organizations are grounded. Presently, it is become increasingly difficult to secure funding from international organizations, which appear to be the only reliable and reasonable source of funds for civil society organization. In most countries, government does not offer logistical support to third sector institutions. The reality now is that funding organizations are under the impression that with the return to formal democracy by majority of the African countries, the need for funds by civil society organizations has reduced. Organizations are barely able to sustain their existence and are unable to carry out any meaningful projects. Activities that relate to litigations especially in the area of human rights enforcement cannot therefore be sustained because of lack of funds.

Lack of viable civil society network/collaboration

In many countries, there is a tendency towards duplication and overlap among groups and a significant lack of coordination in their activities. While there is an obvious need for greater communication, sharing of information and collaboration, there is often in reality, competition and a desire to dominate rather than cooperate.²¹ Amongst civil society organizations, there is constant collapse of coalitions and the disposition of I- alonism continues to pervade the activities of civil society organizations. Many African third sector institutions see the relationship with the international NGOs as largely exploitative with the international organizations utilizing the work of local groups without due acknowledgement. As the number of African NGOs continues to increase, international organizations have found themselves competing with domestic organizations for the same source of funding. This has led to occasions when international organizations have used local human rights group to fund-raise for themselves without consultation or involvement. The above scenario continues to hamper the networking process. International organizations can amplify the campaigns of African groups. Their technical support and collaboration can actually enhance the productivity of the local NGOs. The world is now a global village and there is need to constantly keep in touch with global trend. Adequate collaboration and networking will complement the effort of civil society. In its absence; the potentials of civil society organizations will not be adequately utilized.

Poverty

Poverty affects civil society in many ways including the undermining of democracy. Democracy can hardly work in conditions where the people are poor and ignorant. Based on our experiences with past elections in Africa, the poor and illiterate may be influenced to sell their votes for a mere pittance. As Acheampong once said,²² "One man one vote is meaningless unless accompanied by one man with bread". Apart from the subversion of the independence of the voter, poverty and ignorance do not provide a fertile ground for advocacy and the promotion of rights. The people are either too concerned with the practical details of where the next meal would come from, or are steeped in apathy. This works against the emergence of a robust and pro-active civil society that would work for the consolidation of democracy.²³

Corruption

By its very nature, corruption is an abuse to all internationally acknowledged human rights. It creates a vicious circle where human rights awareness is constantly paired with and undermined by harsh realities of poor economic and political performance. Corruption is both the cause and the consequence of political turbulence, human rights abuses and under-development. Corruption is a challenge to every one, and therefore action must be taken in various areas of society. The role of hard working pressure groups, such as civil society, and vigilant individuals cannot be emphasized enough.

Leadership

Leadership involves goal setting or visioning, the capacity to motivate and/or inspire and mobilize efforts, energies, and talents to reach set goals. As Pat Utomi noted, leaders act as agents of their followers. He further said²⁴-

"It is clear that Africa has a crisis of leadership because we can see clearly that a sense of service is in short supply. It was not always so. The independence struggle produced men who were willing to sacrifice for the common good. In the transition from colonial rule, as they moved from the outhouse to the Government reserved areas, the emergent leaders of Africa saw the tyranny of colonial agents as their model of leadership without recognizing, that leaders and tyrants are polar opposites. For Africa to be renewed, it has to rethink leadership."

Women's Rights

In a pithy summary of the status of women worldwide, the Macbridge Commission comments as follows²⁵-

"Of all the violations of human rights, the most systematic, widespread and entrenched is the denial of equality to women. Despite some progress in recent years, there is no country in the world where women have achieved full equality. Although making up half or more of the population, they are treated as a minority group, disadvantaged and powerless. Often the burdens of poverty, unemployment and educational backwardness weigh heavily on women than men - -".

In the case of African women, they have always played submissive but vitally important roles in the making and development of Africa. Yet, most African societies subject women to economic manipulation, sexual exploitation and political marginalization. The subjugation of women in Africa originates from myths, folklore, native laws, customs, traditions and religions. In spite of the fact that there are constitutional provisions and ratified international Conventions and Charters, which prohibit discrimination against women, African women still suffer a lot of social disabilities and discrimination. Some legislation even encourages the continuous discrimination and subjugation of women e.g. Section 55 of the Penal Code of Northern Nigeria, makes provision for the correction of child, pupil, servant or WIFE.

Sadly enough, many cultural practices have been put in place to subjugate women in our society, such as denying a widow any right to succeed to her husband's property. It is usually declared and assumed that the women herself is a chattel herself bought and paid for, and to be inherited by close members of her husband's family. As Stella Omiyi²⁶ noted-

"One rule of customary law which all the traditional African societies are unanimous about is that in the customary law of intestate succession the widow has no place in the sense that she can never inherit from her husband on intestacy. It is remarkable to find such uniformity in the customary laws of so many people with different origins, histories and customs".

Isabella Okagbue²⁷ explained that this uniformity could be attributed to the patriarchal nature of African societies, which developed patterns of property rights designed to perpetuate male dominance. She expatiated further-

"In pre-colonial times, access to land was the key to power and prestige and was a vigorously defended patriarchal privilege. Men were content to allow women the use of land mainly as a means to expand, consolidate and reinforce their own control. Women especially (especially wives who where not of the same blood line) were not allowed to control land in their own right. One of the easiest means of achieving this was to deny women inheritance rights over land".

The case of Mojekwu V. Mojekwu²⁸ has, however, marked a turning point. A widow who had been disinherited from claiming her late husband's land by a repugnant custom in Eastern Nigeria successfully challenged the custom, where on the death of a man, his property belongs to the male child; if he had no male child, his brother will inherit his property; if the male child who inherits from his father dies leaving no male child, the father's brother will inherit the property; if the deceased's brother dies leaving sons, the sons will inherit the property of the dead cousin, i.e. the "diokpala" - eldest son of the uncle will inherit the property; if a man dies and subsequently his only son and brother die, if the late brother has sons, the first son of the late brother, called "Oli-Ekpe", inherits the estate and wives of the deceased.

In its instructive Judgment, the Court of Appeal, per Tobi, J.C.A. held thus-

"Day after day, month after month and year after year, we hear of and read about customs, which discriminate against the womenfolk of this country. They are regarded as inferior to the men folk. Why should it be so? All human beings - male and female are born into a free world and are expected to participate freely without any discrimination on grounds of sex, and that is constitutional. Any form of discrimination on grounds of sex, apart from being unconstitutional, is antitheses to a society built on the tenets of democracy, which we have freely chosen as a people. We need not travel all the way to Beijing to know that some of our customs including the Nnewi "Oli-Ekpe" customs relied on by the Appellant are not consistent with our civilized world in which we all live today including the Appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with this divine truth, I believe that God, the creator of human beings, is also the final authority of who should be male or female. Accordingly, for a custom or customary law to discriminate against a particular sex is to say the least an affront on the Almighty God himself. Let nobody do such a thing. On my part, I have no difficulty in holding that the "Oli-Ekpe" custom of Nnewi is repugnant to natural Justice, equity and good conscience"

As Bolaji Owasonoye noted,²⁹ the successful use of the repugnancy doctrine in Mojekwu V. Mojekwu was only possible because the indigent widow had the pro bono services of a lawyer and because the Court took the an open-minded, forward-looking approach to the problem. This is true. Nigerian Courts may have unwittingly sustained some of the obnoxious customary practices against women, being that Customary Law is one of the three different legal cultures co-existing and operating in Nigeria. However, in recent times, there has been a greater use of international human rights standards to inform domestic judicial decision-making. The Court of Appeal relied on CEDAW in coming to its decision in the case of Mojekwu V. Ejikeme³⁰. As Uwaifo J. S. C. observed in Abacha V. Fawehinmi³¹-

"I must say that the prevailing attitude is to give special consideration to treaties adopted by any State as part of its domestic laws vis-à-vis other domestic laws".

The Next Step

The gains of democracy continue to elude Africa. Conflicts and civil wars are our constant companions. Majority of our people still live below poverty line. Inequality, social injustice and absence of rule of law continue to be identified with Africa. Government in some cases is not equipped to contain the demands of the society. Inconsistency in policies, lack of originality in policy formulation and absence of a progressive leadership have further worsened the state of affairs in Africa. Civil and political rights are not adequately respected and the protection offered by the justice delivery system is not enough. The best way of promoting and protecting human rights is to achieve social justice by adopting the necessary and reasonable measures with courage, wisdom, foresight, sense of balance, and fair play to all.

The promotion of education for human rights should be an integral part of the efforts aimed at creating a just and democratic society. International human rights standards can be implemented effectively only if they are known by those soliciting for their rights and freedoms, known by the general public, and known by those who are dealing with human rights questions at international and national levels. The extent of the awareness of their human rights by the general public tends to dictate the level of observance of human rights provisions in most societies. This is because a high level of awareness, enshrined in both public opinion and the conduct of ordinary citizens, tends to result in situations in which public officials, particularly law enforcement officials, are forced to observe the formal provisions of these rights.

In societies in which radical changes are being made, Judges often have a difficult role to fulfill, calling for the highest judicial qualities. They have to understand and give due weight to the goals and policies of the changing society when construing legislation or reviewing administrative decisions, and at the same time, they must uphold the human rights of individuals and groups, which are laid down in the constitution, laws and, where applicable, international instruments, or which reflect the lasting values of the society.

Justice requires Judges to adjudicate impartially between the conflicting rights and interests and apply the law according to their understanding of its meaning. Judges should accordingly inform themselves fully about the goals and policies of a changing society. The importance of the Judiciary is not limited to matters of civil liberty or constitutional rights, although those are often the contexts in which the role of the Judiciary is brought under the searchlight. The Judiciary also has a central role to play in the commercial development and prosperity of their country. According to Fidelis Oditah³

"Just as economies are underpinned by trade, so trade is underpinned by the fabric of law and the civil justice system. The law itself provides the basic structure within which commerce and industry operates. It safeguards the rights of individuals, regulates their dealings with others. A steady neglect or decline in the rule of law in many developing countries has been a major reason for the decline in the development prospects of such countries. If foreign and domestic investors lose faith in the ability of our law and the judicial system to protect their investments and property rights or to adjudicate disputes in a timely and fair manner without undue or improper influences, they would be reluctant to invest. The result would be a flight of capital - to other countries where these values are given greater primacy".

Observably, the realization of respect for human rights, good governance and economic empowerment in Africa cannot be achieved without the third sector institutions. In other words, the realization of social justice, rule of law and good governance is a process that involves all stakeholders. It is also a process that can be engineered and driven by a virile civil society. For this to be realizable, the following is suggested

• Government should concern itself with evolving pro-poor policies, which must emanate from the people. It should recognize the relevance of civil society organizations and work with them towards achieving economic and civil empowerment of the people. The present attitude of African States in importing foreign economic policies, which visit much hardship on the people, is condemned. Poverty is synonymous with social injustice. Human rights cannot be respected in an environment where the people are suffering. Civil society organizations cannot perform where the government is antagonistic. For there to be progress, the relationship between government and civil society organizations must be complementary.
• Justice delivery system must be reformed to adequately rise up to its duty as the last resort of the common man. The courts should have the capacity to expeditiously dispense with cases. Judges should be adequately remunerated to enable a functional justice delivery system. The rules of court must be reformed to ensure easy access to justice.
• The ever-escalating violence in Africa must be checked. Violence begets abuse of human rights and stifles the effort of civil society in society building. Good governance is an adequate answer to the imperatives of peaceful society. For there to be development in Africa, there must be end to violence.
• Local organizations should assist in funding local NGOs. It is suggested that International donor agencies should increase the funding available to civil society organizations and that way help in capacity building within such organizations.
• Within the civil society, there is need for trust, which will in turn, engender fruitful collaboration and productive networking. That way the diverse activities of civil society organizations are harmonized to yield better results.

I will conclude my presentation with the following statement credited to Senator Herbert Humphrey of the United States - "The moral test of government is how it treats those who are in the dawn of life - the children; those who are in the twilight of life - the aged; and those who are in the shadows of life - the sick, the needy, and the handicapped". Reduced to nitty-gritty, that really is the bottom-line of good governance. And that, undoubtedly, is a test that most African States will fail woefully. Thank you.

Hon. Justice Amina A. Augie

ADF-IV October 2004

Aminaaugie2004@yahoo.com

1 Presented at the Fourth African Development Forum (ADF-IV) held in Addis Ababa from the 11^th - 15^th October 2004 on the theme "Governance for a Progressing Africa".

2 Welcome Address - Seminar on "Corruption, Democracy and Human Rights in East and Central Africa", organized by Africa Leadership Forum in Entebbe, Uganda, 12 - 14 December 1994. Gen. Obasanjo was then Chairman of the Forum, and Member Advisory, Transparency International

3 Former Chief Justice of India - "Creating judicial culture to promote the enforcement of women's human rights" - Advancing the Human Rights of Women - Hong Kong May 1996

4 See SERAC & Anor V. FRN (2002) 2 CHR 537 - African Commission on Human and Peoples' Rights, Banjul Gambia, 30^th Ordinary Session 13^th - 27^th October 2001.

5 "Dr. Etannibi E. O. Alemika - "Protection and Realization of Human Rights in Africa" - Perspectives on Human Rights

6 Quoted ibid

7 CNN.com Death of second farmer mars Zimbabwe Independence Day

8 Sudan: Dafur in Flames: Atrocities in Western Sudan, April 2004, Vol, 16, no. 5 (A)

9 Ilo U. J "The Rope: Country Report on Death penalty Application in Nigeria"- published July 2004

10 Lee G. Muthoga - "Effects of Corruption on Democracy" - Seminar on Corruption, Uganda, 1994.

11 Tiawan S. Gongloe - "Politics and Good Governance with Emphasis on Democracy, Human Rights and Ethics and National Integration in Africa." - The Perspective, Atlanta Georgia, November 5, 2002

12 J. G. Nkem Onyekpe - "Constitutionalism and Democratic Consolidation in Nigeria: A Conceptual Framework" - The Constitution - A Journal of Constitutional Development Vol. 1, No. 3 March 2001

13 International Human Rights Internship Program: Ripple in Still Water, Reflection of /activists on Local- and National-level Work on Economic, Social and Cultural Rights p 41

14 The Status of Human Rights Organizations in Sub-Saharan Africa

15 Ripples in Still Water supra

16 E. Gyimah-Boadi: Civil Society in Africa op cit

17 ibid

18 "Corruption and the Judicial System: The Challenges Ahead". Seminar on Corruption, Uganda, 1994

19 Foreword to Human Rights and Contemporary Issues in Africa by Nsongurua J. Udombana

20 Ibid.

21 The Status of Human Rights Organization in Sub-Saharan Africa p6

22 A Former Ghanaian Head of State - Amnesty International Background Paper in Ghana (1974)

23 Pat Utomi - "Micro-Credit and Poverty Alleviation" - Women's Political Participation through Economic Empowerment - HDI Publications 2001

24 "Afro-Optimism? Leadership Crisis and Africa's Wilderness Years. What hope for the 21^st Cent.".

25 Quoted by Francis C. Enemuo - "Political Participation and the Economic Empowerment of Nigerian Women: Imperatives and Prospects". HDI Publications 2001, supra note 23

26 "A Critical Appraisal of the Legal Status of the Widow under Nigerian Law

27 "The Legal Rights of Widows in Nigeria" - Widowhood in Nigeria: Edited by Owasonoye & Ahonsi

28 (1997) 7 NWLR (pt. 512) 238

29 "Right to Family Assets and Succession in Reproductive Rights of Women in Nigeria: The Legal, Economic, and Cultural Dimensions" - Human Development Initiatives, Lagos.

30 (2001) 1 CHR 179

31 (2000) 6 NWLR (pt. 660) 228.

32 "The Judiciary in Developing Country: The Case of Nigeria"