THE AFRICAN EXODUS
FROM THE RULEOF LAW AND THE RESPECT OF HUMAN RIGHTS
The Israelites are said to have moved from Egypt to the
Promised Land, Moses, their leader is documented to have been called by God,
when he saw a burning bush that was not being exhausted; Moses was told to go
and take the Israelites out of Egypt into the promised land, the promised land
is said to be a land where honey flows from it, unlike in Egypt where they were
in slavery, the promised land is said to be different .The movement was termed
as ‘exodus’. However Africa has now obtained, defined and nurtured its own exodus,
an exodus that has not come through a revelation or divine intervention unlike
for the Israelites, here an exodus is an African decision.
Rule of law is a principle that has been defined various
times by different various times by different people with no agreed definition;
however rule of law can be defined along various principles;
a)
government
that is duly elected as per the law
b)
government
that operates within the law
c)
citizens
and those in government being equal before the law
d)
government
that respects human rights
The main issues that had had led to the fight for independence have now changed and , in its
place , the African ‘political gods’ or ‘the self-converted elites’ have
replaced the priorities ; greedy for power, greedy for resources and corruption
have taken the centre stage, this is now the exodus; as G.W KANYEIHAMBA notes that
The highest preferred by the new
African leaders came to be how to stay in power longest for the sake of self[1]
at whatever cost , this new priority has to be achieved ;
these ‘political gods’ have been holding positions, changing the law to suit
their needs , no matter whether it is
infringing of the normal citizens.
in Africa ,human rights are not inherent or rather , they are
inherent on paper , in fact they exist on paper but operate in a vacuum ; NO!
human rights in Africa operate in a different planet , a planet where the ‘political gods’ sleep, eat and enjoy
their lives; to the political gods , the
1776, Virginian declaration of rights that all men by nature are equally free and independent and had inherent
rights ‘ is as a result of good
rains but bad planning.
Most countries in the African continent have constitutions
and all legal instruments, but these legal apparatus have fallen short of glory,
the violation of human rights in post-independence Africa, has not been solely
due to the weakness or absence of constitutional and other legal guarantees of
those rights but it’s the lack of the will by those ‘political gods’ and in
agreement with Kanyeihamba who
argues and I quote
In a number of commonwealth
countries, constitutions are perceived by those in power, not as protectors of
the human rights and the liberties of the individuals but as instruments for
legitimizing the exercise of power. For the opponents of these rulers,
constitutions are understood in terms of the government legitimacy to exercise
arbitrary power, to impose restriction on certain freedoms and rights and to do
whatever the ruling oligarchy deems necessary and in its interest[2]
In Kenya for example, the freedom of movement was denied in
Mpeketoni, Lamu county , when the government imposed unnecessary curfews, but
they further legitimized it by saying that it was because of public interest
and public security, in Uganda , the security agents used excessive force
against the demonstrating citizens , the government had to use the same law to
defend its arbitrary rule, the law is then
sought , as an afterthought and manipulated to legitimize retroactively
the illegal activities of the African government and let the ‘political gods’
hide under the veil of the law. It is the miscarriage of the rule of law and attack
to the human nature. Having a bill of
rights in a constitution is commendable, but if the same political gods lack
the will to respect the same constitution it is absolute nonsense to say that
we have a constitution protecting the rights of the citizens
It is true that we may have the best written
bill of rights in the world, but if the
state organs , institutions and leaders at all levels and every individual in
the country are not committed and do not pay serious attention to them , human
rights as so guaranteed are not worth the paper(s)they are written on[3].
Rule of law, being equal before the law also calls for the
respect of court orders, judgment and the separation of powers, but hell no,
that cannot happen in Africa; in Nigeria, a bench was composed of the armed
forces and police[4], a
citizen was to be judged before such a bench whose impartiality could not be questioned,
yet such an accused was expected to enjoy the right of fair trial, in a bench
where he was already presumed guilty. In Uganda, an army commander, General Tinyefuza is noted to have
stated
Who are these fellows’ judge(s)? The
judges have no power to order the army .the army will not accept this business
of being ordered by the judge[5]
The lack of respect for the rule of law and human rights in
Africa can be attributed to the poor forms of governance, e.g. the military rule, one party dictatorship or
even democracy , as lawyers committee
reported
For many years in Malawi, expulsion,
detention, sexual abuse, theft of food rations was never revealed. The reason being,
Malawi was a one-party dictatorship with no free press, no human rights
organizations and no possibility for uncovering or criticizing official
misdeeds[6]
In Africa, civil wars, revolutions and counter-revolutions is
like Sabbath, and in such a period, a country is always in a turmoil and it
would be of great insanity for one to expect respect for human rights during
such a time; the civil wars are normally characterized by a massive violation
of human rights, it may be because of constitutional inadequacy that has led to
coups, civil wars and ethnic cleansing in Africa under which no human rights
can be respected. Justice A. Akintula
Aguda decries this form of changing government and he states that
in these dangerous games of revolutions and
counter-revolutions , which became the most popular and accepted forms of
changing government , the judiciary has had on many occasions , the unenviable
duty of upholding the repressive and barbaric laws on the pain of dismissal or
in some cases of liquidation. The fact of course is that most government
founded upon the wielding of the gun, or upon the palpable…can hardly be
expected to have much regard for legality and the rule of law …most principles
and the rule of law are rough-shod ridden as if they do not exist or as if they
are obstacles to be crushed[7]
It is therefore not prudent to expect respect for human
rights in a country like DRC, a country which is at war with itself, where the
political gods are in competition for power. It is discouraging and a sad event
that the courts are used to rape and defile justice, the courts have been used
to rubberstamp the executive decisions, both the legislature and the judiciary
are on a payroll of the executive, the executive gives those peanuts and they
diverge from their co mandate as in the words of Kanyeihamba
Courts have been making political decisions,
courts should provide legal sanctuary and succor to victims of violations of
human rights[8]
In Africa , for some countries , it is a ritual act for a
leader to contravene or kill his own citizens ; whatever happened in Burundi ,
if it is to b e reckoned: the shooting of the demonstrators by the security
agents, who were working on an order ‘ from above’, it was a government killing
its own citizens , funny enough the African union, did not intervene; maybe the
killing of the citizens was justified, because what happened in Burundi happens
everywhere in Africa ; Senegal is no better, DRC ,Kenya, Uganda is no better.
every African must have welcomed the passing away of colonialism
where there were inexplicable killing, arbitrary arrests and detentions of
thousands of innocent people; they hoped for a better future where there will
be respect for the rule of law and human rights but unfortunately , we may not
have seen government officials killing its own citizens , raping by the
government officials as it is now seen after post-colonialism ; the
post-independence governments have turned themselves into vultures and turning their states as
personal as personal properties , a principle shared by professor Nsibambi, in his words
We regret to point out that some of
our post-independence governments have disgraced the continent of Africa by
devaluing life and property and by treating their states as personal properties[9]
In Africa, it is the elite who rape the constitution, defile
the other legal apparatus with no shame at all. As Lawrence M Muite says,
When state elites adulterate
constitutionalism and constitution-making, the masses are left wondering, how
it is ever possible for their political leaderships to change so dramatically
from fervent espousal of adherence to constitutionalism and the rule of law to
contempt for its principles[10]
It has now become a duty and an obligation of the
international community to remind and rebuke African governments on the
importance of respecting human rights; in Kenya for example, the government
wanted to repatriate the refugees of Somali origin to their country while contradicting article 33 of the 1951 UN CONVENTION AND ARTICLE 11(3) OF THE OAU
CONVENTION. Ban Ki Moon, UN SEC-GEN had tom intervene; in Angola they
ordered all people of the west to leave.
in May 10, 2000, it took law society of Kenya to intervene on
what was going on in Zimbabwe, the president of LSK had to write to the
president of Zimbabwe blaming his government of the contribution to the damage
done to the rule of law, the cause of democracy and human rights in Africa and
in general in Zimbabwe, the commitment of his government to respect human rights
and further goes on to state
Over the few weeks, Africa has been
bleeding. You can stop this hemorrhage…we write to you because we want to end
or banish the conspiracy of silence
from the continent …..We write to you with full knowledge that all is not
well in many African countries...the culture for gross human rights abuses has
been led by people who are also the leading opponents of real democracy and who
supports repressive and autocratic system of governance[11]
it is the unwillingness of the African leaders and
governments to respect the rule of law
and human rights that has led to the violation of those rights and the sufferings , cries witnessed across
the continent. The freedom of speech, a fundamental right has been enjoyed
selectively , for the pro-government , it is an inherent right /freedom but for
the anti-government it is not; in Tanzania , hon Kizito Kabwe, was suspended
from the house on the ground that he humiliated the then minister for energy
and minerals minister,Hon Nazir Karamagi, the Mp had tabled a motion proposing
the formation of a parliamentary committee to probe the contract signed by the
minister while in London , the Mp was as a result banished from the house[12],
in Uganda it is not different, the opposition leader, DR. KIZZA BESIGYE, has a
special room in the jail, he is always
in detention for being an ant-government. In Nigeria it is no better, the media
is not free[13],
this a tragedy.
In Africa , terrorism has been used to violate human rights,
the imposition of curfews and
manhandling of residents , at the coast of Kenya, there has been disappearances
of sheikhs and imams , who were thought to be associated with the alshabaab,
the shooting of Aboud Rogo. a muslim imam is yet to be investigated but most of
the leaders have termed it as an assassination. Many African nations have taken
exceptional measures which have been accompanied by gross abuses of human
rights; at the northern parts of Kenya, mass graves have been found, residents
have been complaining of rape cases purported to have been committed by the
security agents.
Todd landman, also sees the new security legislations as
roadblocks to the realization of the human rights. ‘The emergence of hollow democracy and the new security legislation in
l;iberal democracies compromising long-held human right norms’[14]
There is a need, or we must guard these human rights
jealousy. The Bill of Rights is the most important and integral part of a
constitution, which desires respect as Charles Mwaura notes,
a crucial part of any written
constitution is the guarantee of citizens’ rights called the Bill of Rights
which includes a clear declaration of the Rights of all people such rights
precede and transcend the state. They are not granted by the state.[15]
According to Hinds v
The Queen, The provision of a chapter of human rights in the constitution
‘imposes after on the exercise by the legislature, the executive and the
plenitude of their respective powers.’
In conclusion; Derek Muhwezi puts it,
‘the pillars of a democratic society are, the sovereignty of the people,
government based on the consent of the governed, majority rule, free and fair
elections, constitutional limits on government, social, economic and political
pluralism; due process of the law; of equality before the law and guarantee of
basic human rights.[16]
Africa should stop the
exodus, rights and the law cannot be subject to personal and dictatorial
manipulations, let us all be guided by constitutionalism, let this dream song
of a Kenyan freedom fighter be a reality.
“We believed that time had come for
true freedom in Kenya. The days of exploitation were coming to an end. Those
who had plundered the treasury and our country’s resources would be prosecuted.
There would be no amnesty for looters and sponsor of ethnic violence. We had
seen Canaan, the land of freedom and plenty that the mau mau and other patriots
lost life, limb and property to attain it.[17]
[1]
G.W Kanyeihamba .constitutional and political history of Uganda
[2]
G.W Kanyeihamba ;constitutional law and government in Uganda, E.A.L.B, 1975
from page 451
[3]
see Report of the Uganda commission of
inquiry into violations of human rights in Uganda p.g 581
[4]
constitutional rights project ( in respect of zamani lekwot and 6 others ) v
Nigeria
[5]
Daily monitor newspaper : 3 February 2006
[6] a
Report of the Lawyers committee for human rights , July 1995
[7]
Essays on third world perspectives in jurisprudence
[8]
G.W Kanyeihamba, kanyeihamba’s commentaries
[9] in
a mimeo published by MISR, makerere university
[10]
Lawrence M.Muite, constitutionalism in East Africa ,2004, p.g 4
[11]
as quoted in law society of Kenya, constitution making and democracy in Kenya
p.g 32-34
[12] James
EC. Jesse; freedom of speech for members of parliament in Tanzania
[13]
Media rights agenda and others v Nigeria
[14]
TODD LANDMAN, protecting human rights; A comparative study at p.g.3
[15]
Charle Mwaura Kamau, Principles of Constitutional Law p.g.117
[16]
Derek Muhwezi Funding The Constitution of Uganda p.g.80
[17]
Kibe Mungai, The Constitution Review Commission: Goals Vs Achievements. In Law
Society of Kenya, Constitution Making and Democracy in Kenya p.g8
No comments:
Post a Comment