Policy Brief for African Union

Human Rights Watch respectfully submits this brief in contribution to the African Union’s efforts to protect human rights and fundamental freedoms on the continent. The submission draws on lessons learned from Human Rights Watch research and continued engagement with the African Union policy and human rights institutions.

Human Rights Challenges in Sub-Saharan Africa

This year, the African Union (AU) celebrates its 20th anniversary since the Durban Summit, which established the Pan African institution, as the continent continues to face tremendous health, security, and justice challenges. African countries are particularly affected by limited access to Covid-19 vaccines, treatments, and testing. The lack of access to affordable Covid-19 vaccines is due to the selfish behavior of governments of wealthy countries and pharmaceutical corporations that failed to share knowledge and technology widely to ensure equal global access to Covid-19 vaccines, leaving billions of people without life-saving shots. This has cost lives, threatened health, and slowed Africa’s economic recovery and further worsened the pandemic’s impact on poverty.

The German company BioNTech and the US company Moderna have announced plans to begin building new mRNA vaccine manufacturing facilities on the African continent later in 2022, but it will take significant time for these facilities to begin producing vaccine doses. Experts have identified several existing companies on the African continent with the potential to produce mRNA vaccines within months if they had timely access to intellectual property, vaccine technology, and materials needed to support manufacturing. AU member states should press the US and German governments to take all available measures to ensure that companies making safe and effective Covid-19 vaccines, especially mRNA vaccines, transfer technology to companies in Africa to diversify and expand global vaccine production quickly.

The South African company Afrigen Biologics and Vaccines, working with the World Health Organization’s mRNA technology transfer hub, has successfully reproduced Moderna’s mRNA vaccine without help from Moderna. This breakthrough marks both a failure of global solidarity during the pandemic and a monumental step forward on the path toward greater sharing of lifesaving health technologies to protect rights. AU leaders should continue to press Western governments to support the technology transfer hub and ensure companies in their countries participate in the initiative and do not seek to undermine it.

Human Rights Watch research on the rising poverty and economic inequalities caused by Covid-19 response measures in Kenya, Nigeria, Ghana, Uganda, and Cameroon underscores the urgent need for African governments to put in place or expand existing social protection systems to fulfill the rights to social security and an adequate standard of living. Research in Kenya and South Africa highlight the need for infrastructure to protect women and girls from gender-based violence as illustrated by elevated levels of sexual and physical domestic violence against women and girls while the restrictions on mobility to stop the spread of the Covid-19 virus limited their access to protection and treatment services. Survivors’ hardships were made worse by inadequate government responses to protect women and girls through the police, judiciary, and ensuring medical and shelter facilities were available and easily accessible.

In response to the Covid-19 pandemic and to prepare for future public health crises, AU member states should increase states’ investment in quality health and education infrastructures, including expanded capacity for manufacturing vaccines. They should also continue to pressure Western governments to end vaccine nationalism, transfer vaccine technology to capable manufacturers on the African continent and World Health Organization’s mRNA technology transfer hub, and support a waiver of certain intellectual property rules for vaccines, tests, and treatments needed for the Covid-19 response. The AU should also press for more reforms in vaccine procurement efforts such as COVAX as well as at the AU level, so all public procurement is conducted in a way that is transparent, including publishing procurement contracts with companies and purchase prices paid to companies. The AU should encourage its members to build robust defense mechanisms against shocks in financial security by establishing or expanding social protection systems to fulfill their obligation to ensure the rights to social security and an adequate standard of living.

The impact of the Covid-19 pandemic was compounded by brutal armed conflicts, armed Islamist and communal violence across much of the sub-continent, including in Burkina Faso, Cameroon, the Central African Republic, the Democratic Republic of Congo, Ethiopia, Mali, Mozambique, Niger, Nigeria, Somalia, and South Sudan. Non-state armed groups involved in the conflicts were implicated in massacres, targeted killings, rapes, burning and looting of villages, kidnappings, forced recruitment, attacks on students and teachers, and the burning and illegal occupation of schools. In response to the violence, some government forces were also implicated in serious human rights abuses, including while conducting counterterrorism operations, by targeting ethnic minorities and stifling the rights to free expression, association, and peaceful assembly in the name of national security.

Human Rights Watch research shows how recruitment by armed Islamist groups is fueled by grievances about state failures to respect fundamental rights, ensure justice and accountability for abuses, and deliver basic services. This is often further compounded by summary executions, enforced disappearances, arbitrary arrests, and torture of suspects and others suspected of supporting armed Islamists, often simply based on their ethnicity – and the near total impunity for such crimes. The United Nations Global Counter-Terrorism Strategy reaffirms the inextricable links between human rights and security. It places respect for the rule of law and human rights at the core of national and international counter-terrorism efforts.

The region has also seen a surge in unconstitutional coups and military takeovers in recent months, including in Burkina Faso, Chad, Guinea, Mali, and Sudan. These developments have often denied citizens the right to choose their government, reversed hard-won progress on the rule of law, including on justice and accountability, and resulted in grave human rights abuses. The instability, civic unrest, and political upheavals that have led to coups or attempted coups are frequently rooted in people’s grievances about corruption and the perceived unwillingness of political elites to uphold their constitutional obligations and promises of reform, including promoting political pluralism and stepping down at the end of their term.

Although term limits are not required by international law, the lack of respect for constitutionally imposed term limits – combined in many cases with political repression and election rigging – undermines democratic checks and balances and has facilitated a pattern in many countries in which incumbents maintain power through periodic elections that are neither free nor fair. This has led to elected governments that are democratic in name only – but authoritarian in all other respects.

To achieve real progress toward respect for human rights and people-centered democratic governance, the African Union should adopt and enforce additional policy tools to support respect for the rule of law and the regular, peaceful, and democratic transfer of power. That should include an AU ban on unlimited and unaccountable executive power and stronger policies and tools to deter manipulations of national constitutions, election rigging, and political repression.

These actions should be coupled with the operationalization of judicial mechanisms to investigate and prosecute international crimes In keeping with its long-standing call for “African solutions to African problems,” the AU should promote and implement concrete African-led judicial mechanisms to advance accountability for serious crimes committed in violation of international law and ensure access to credible justice for victims.

In South Sudan, the AU’s credibility – including relating to its commitment to its own Transitional Justice Policy – is at stake with the lack of progress towards the establishment of the Hybrid Court for South Sudan as an accountability mechanism for serious international crimes committed in the country’s conflict. The AU undertook leadership on accountability with its decision to create the unprecedented AU Commission of Inquiry on South Sudan, which recommended a hybrid war crimes court. But it is now more than eight years since the commission was established and six years since the AU , together with the Intergovernmental Authority on Development (IGAD), midwifed the 2015 Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCSS) which provided for the establishment of a Hybrid Court for South Sudan to investigate and prosecute serious crimes.

In the face of stagnation by South Sudanese authorities to support the hybrid court’s creation, the AU should press South Sudan to finally take concrete action to establish the court or otherwise direct the AU Commission to operationalize the court on its own initiative. This would signal the AU’s commitment to accountability, and to ensuring that the South Sudanese authorities can no longer hold justice for victims hostage through their intransigence on justice efforts.

In Chad, the victims of Hissène Habré’s brutal rule still await reparations from a court mandated trust fund established by the African Union in 2016. Reparations, comprising compensation, restitution, satisfaction, rehabilitation, and guarantees of non-repetition are essential to redress the trauma and harm caused to survivors of Habré’s regime. The African Union should make the trust fund operational, to trace Habré’s assets and to make efforts to obtain voluntary donations from donors.

The AU should also encourage African governments to make progress on long awaited justice efforts, notably for the Guinean government to move ahead with the trial of alleged perpetrators of the country’s 2009 stadium massacre and for the Liberian government to request assistance to set up a war crimes court to prosecute civil war-era atrocities.

Despite a clear recommendation for the establishment of a war crimes court by Liberia’s 2009 Truth and Reconciliation Commission, the court has yet to be established. The only cases to date have progressed abroad – for example, in Switzerland, Finland, and France, but such cases should complement, not substitute accountability on the continent.

The AU should also support novel judicial efforts that are underway on the continent, such as the Special Criminal Court in the Central African Republic, and urge other countries, such as the Democratic Republic of Congo, where serious crimes have been committed to more actively pursue criminal accountability through similar types of initiatives in order to prosecute serious international crimes committed over the past several decades, including by perpetrators from DR Congo and other neighboring countries.

Finally, the AU should further push member states to uphold their commitments under regional and international law to protect refugees and asylum seekers. Some countries, though party to the 1969 African or 1951 UN refugee conventions, do not yet have national asylum laws in place. In several states, authorities have arbitrarily detained or abused asylum seekers and refugees, including in Algeria, Egypt, Libya, South Africa, and Tanzania. Some have collectively expelled foreign nationals without individually assessing protection needs, including Algeria and Mauritania, while others have forced or coerced refugees and asylum seekers to return to countries that remain unsafe, such as from Tanzania to Burundi and Mozambique, from Botswana to Zimbabwe, and from Egypt to Eritrea. Kenya’s government in March 2021 announced its planned closure by June 2022 of Dadaab and Kakuma refugee camps-hosting over 400,000 refugees, many from Somalia and South Sudan-despite ongoing security risks in both countries.

Top Recommendations to the African Union Leadership

It is against this background that we encourage the AU to prioritize and act on five critical areas: increasing states’ investment in rights-driven Covid-19 responses; protecting civilians in armed conflicts; enforcing constitutional democracies; promoting justice and accountability; and protecting refugees, asylum seekers, and internally displaced persons (IDPs).

Increasing States’ Investment in Rights-Driven Covid-19 Responses:

• Governments should protect the rights of health care workers and other essential workers, especially by bolstering occupational health and safety measures.
• Measures to protect against the spread of the Covid-19 should be in line with international law. This means that when quarantines or lockdowns are imposed for example, governments should ensure access to food, water, health care, quality education, support services for people with disabilities, and services for survivors of gender-based violence.
• Governments should ensure that economic recovery efforts emphasize protection of economic and social rights, including an adequate standard of living for all without discrimination, equal access to quality education, particularly for groups that were disproportionately impacted by Covid-19 or related lockdowns, and avoid austerity measures harmful to human rights.
• All AU member states should commit a significant percentage their national budgets to health, in accordance with the Abuja Declaration. They should ensure increased access to healthcare by all Africans, guaranteeing this as a right.
• In line with the Nairobi Declaration and Call for Action on Education, all AU member states should allocate a significant percent of national Gross Domestic Product and total public expenditure towards education, ensuring the right to education for all.
• Ensure that national and local Covid-19 response plans address the distinct impact of the pandemic on women and girls especially related to sexual, physical domestic, and economic violence. Develop appropriate responses in consultation with women and girls’ rights organizations and allocate necessary resources.
• Press Western governments to ensure companies that developed safe and effective Covid-19 vaccines transfer technology widely to capable manufacturers in Africa, and to the World Health Organization technology hubs.
• Make clear that pharmaceutical companies’ plans to build new manufacturing facilities in African countries in the coming years do not preclude swift technology transfers to existing facilities with the potential to make mRNA vaccines quickly.
• Encourage and support African governments to boost their vaccine manufacturing capabilities.
• Press the United States, the European Union, and other Western governments to adopt a waiver of intellectual property protections on vaccines, treatments, and testing that has stalled for more than a year at the World Trade Organization.
• All AU members (especially those that are not Least Developed Countries for the purposes of TRIPS) should adopt national level legislation similar to Brazil to overcome intellectual property barriers as much as possible at the national level.
• The AU and member states should take concrete steps to ensure equity, transparency, and fairness in the disbursement of all funding for Covid-19 vaccine research, development, manufacturing, or distribution requiring technology transfer. This would ensure the sharing of all intellectual property, data, and other “know-how” to enable mass manufacturing of successful vaccine candidates.
• AU member states should set up and/or expand social protection systems to fulfill the rights to social security and an adequate standard of living in the wake of rising poverty and economic disparities caused by Covid-19 responses.

Ensuring Civilian Protection

• In keeping with the AU ambition of promoting pan-African ideals of a people-centered Union, AU member states should speak up and break ranks with peers that are committing serious violations of international humanitarian and human rights law.
• Support and enforce a joint AU-UN Framework on Human Rights and Accountability by fully implementing the OHCHR Human Rights Due Diligence Policy in countries where the AU is conducting peace support and counterterrorism operations.
• Revive a dedicated AU Early Warning and Conflict Prevention Unit within the Political Affairs, Peace and Security Department tasked with providing technical assistance to the AU commission to address proactively humanitarian and human rights crisis.
• Urge African governments to ensure that all security forces deployed on counterterrorism operations are subject to scrutiny and enforce the operationalization of mobile courts for each African contingent engaged in peace and counterterrorism operations.
• In collaboration with the African Commission on Human and Peoples’ Rights (ACHPR), increase the presence of human rights officers in African-led counterterrorism missions and ensure that cooperation agreements on counterterrorism operations include specific clauses setting out human rights standards such as the UN Human Rights Due Diligence Policy.
• Support meaningful and effective security sector reform efforts and take concrete measures to improve security force compliance with international human rights and humanitarian laws, including through the establishment of civilian oversight bodies and vetting mechanisms to remove members of security forces implicated in serious human rights abuses from the security and intelligence services. This also means improving Demobilization, Disarmament, and Reintegration (DDR) programs and strategies for dealing with armed groups, with long-term, holistic support to consult and engage with affected communities and to deter former fighters from returning to armed groups.
• AU member states should provide prompt and adequate redress for civilian victims of laws-of-war violations by setting up a system to rehabilitate victims in the context of civilian casualties and property damage. Besides monetary payments, options could include public acknowledgement, apologies, and livelihood assistance, reflecting the circumstances and needs of affected civilians. Those responsible for war crimes should be prosecuted.
• Criminalize all forms of violence against women and girls including physical domestic (intimate-partner) violence and sexual violence and put in place effective measures and mechanisms to ensure that the perpetrators of such crimes are held accountable, and survivors are compensated timeously, adequately, and fairly.
• Ensure that women and girls who are survivors of violence have access to all the necessary assistance including information, medical and psychosocial services, and support.
• In line with the recommendations of the African Union’s Peace and Security Council, endorse the Safe Schools Declaration. Guided by the recent “General Comment on Article 22” from the African Committee of Experts on the Rights and Welfare of the Child regarding children in situations of conflict, adopt an explicit ban on the use of schools by peacekeeping forces in their operations.

Supporting Constitutional Democracies

• Strengthen the independence of African human rights institutions and adopt measures to protect regional human rights institutions from interference or political control by member states.
• Governments should ratify and domesticate the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol; as well as ensure its effective implementation and monitoring at the national level.
• In collaboration with sub-regional economic blocs, support the speedy ratification of the AU Charter on Democracy, Elections and Governance by all 55 member states.
• Establish long-term election observation missions and technical experts that have full access to monitor the activities, financing, and spending of electoral commissions and bodies involved in voter registration and other election activities.
• Establish an AU Elections Observatory to monitor electoral contexts and processes, warn against negative trends, including violence against women and girls during elections, and proactively report to the AU Peace and Security Council.
• Increase diplomatic pressure and publicly urge member states to take prompt, credible, and impartial steps to investigate allegations of election-related repression including killings, beatings, arbitrary arrests, torture, rape, and assaults by security forces, and to hold those responsible accountable.
• Press member States to review and reassess their military and security institutions in accordance with the African Charter on Human and Peoples’ Rights, ACHPR Guidelines for the policing of assemblies by law enforcement officials in Africa, to ensure these institutions fully respect and promote human rights and do not undermine freedom of expression and association.

Justice and Accountability

• Demonstrate credibility on accountability initiatives by at last ensuring the establishment of the Hybrid Court for South Sudan through effective engagement with the South Sudanese authorities or directing the AU Commission to move ahead with the court’s creation on its own initiative.
• Support fair, credible trials for those most responsible for mass atrocities and other serious human rights abuses in Africa, notably by encouraging the opening of the long-awaited trial of crimes committed during Guinea’s September 2009 stadium massacre and for Liberia to request assistance to create a war crimes court to prosecute atrocities committed during Liberia’s back-to-back civil wars.
• In collaboration with the ACHPR, support cooperation with the International Criminal Court, including the investigation and prosecution of atrocities committed in Darfur, Sudan.
• Operationalize the Trust Fund for Victims of Hissène Habré’s Crimes. The AU played a major role in Habré’s landmark trial, but the victims, who campaigned for justice for 25 years, have now been waiting another five years for the Fund to begin its work.
• With the support of international partners, support the establishment of an African led sanctions regime that includes travel bans and asset freezes against those responsible for ongoing serious human rights abuses.
• Support the full operationalization of the African Court on Human and Peoples’ Rights by encouraging all State Parties to ratify the Protocol establishing the court to make a declaration recognizing the competence of the Court to receive cases from NGOs and individuals.

Protection of Refugees, Asylum Seekers, and IDPs

• AU member states who are party to the 1969 OAU or 1951 UN refugee conventions but lack robust national asylum laws should move swiftly to finalize and implement legal asylum frameworks.
• Ensure that no refugee, asylum seeker, or IDP is forcibly returned to countries or contexts where they could face persecution, serious harm, or other threats to their lives or freedom. This includes early returns of IDPs to unsafe areas, as well as coerced or forced returns, collective expulsions, or pushbacks of asylum seekers and refugees. All refugee repatriations should be truly voluntary, without pressure or threats, when home country conditions are safe and conducive for return.
• AU member states should protect refugees and asylum seekers under their jurisdiction, including from abuses by police, military, or other state agents; violence by host communities or local citizens; and retaliation by agents from refugees’ home countries. In contexts of violence and armed conflict, governments should ensure and facilitate humanitarian access to refugee camps; respect the humanitarian nature of refugee camps and not deploy forces there; and hold accountable those responsible for attacks on the security of refugees.
• AU member states should end the detention of asylum seekers and refugees for immigration purposes. Immigration detention should only be used as an exceptional measure of last result, for the shortest possible time, when it is necessary and proportional to do so. Under international human rights standards, asylum seekers should generally not be detained on immigration grounds.
• AU member states should uphold the rights of refugees, asylum seekers, and IDPs to health, education, and freedom of movement. This includes ensuring children can access schooling, making Covid-19 vaccinations and related medical care equitably available, and ending encampment policies and other movement, work or education restrictions impacting these populations.