Enforcing community participation under the institutional frameworks of the African Charter

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Chapter three: Community participation and the normative content of the African Charter

Introduction

As stressed earlier, the fundamental rights-based approach has two normative dimensions: community participation as a fundamental right and community participation as a channel to enforce other fundamental rights relevant to good governance and sustainable development in the mineral sector. Therefore, this chapter seeks to scrutinise and analyse relevant fundamental rights laid out in the African Charter on which affected communities may practically rely on to make their participation effective and secure their fundamental rights in a mineral project. One critical issue in this regard is the question as to what should be the reach of fundamental rights entrenched in the African Charter: Should they be limited to the sole vertical application or rather extended to the horizontal application?

Review of the normative aspects

The first dimension: Community participation as a fundamental right

The analysis here focuses on the provisions of the African Charter that are decisive to implement community participation in mineral governance. In this regard, provisions that have been identified include the fundamental right to freely participate in the government in article 13, the rights to receive information, to express and disseminate one’s opinions in article 9 and the right to have one’s cause heard in article 7.

The right to freely participate in the government

Scope of the right

Article 13 (1) of the African Charter provides that:
Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.
It was inspired by article 21 of UNDHR, which provides that “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”. It attempts to provide understanding of how participation should be conceived in a democratic system. As underlined in chapter two, though participation was acknowledged as a necessity, most approaches developed thus far have been simplistic in that they only define the concept according to the need to have members of a community involved in the decision-making process, without underling the binding dimension that this exercise should take on. As a result, there has often been great reluctance to consider participation as a legal obligation (see for instance, the World Bank’s radical rejection of the “veto”).658 The soft approach implemented so far is actually paradoxical to the perspective embodied in international instruments on fundamental rights, of which article 13 (1) of the African Charter is also part of.659 Because “participation” is formulated there as a fundamental right, it stands as a legal obligation and its implementation is therefore compulsory and not optional for other stakeholders. Practically, the implication is that holders of the right must get involved in the decision-making process and enjoy a certain level of power that would help them to advocate and secure their best interests. In fact, the fundamental right in article 13 makes democracy alive in so much as people are offered the possibility to influence the outcome of the decision-making process. In democracy, the fundamental right to participate in government serves as a tool that allows people to be included in matters of public importance with the view to prevent any outcome that may threaten their best interests.660 But what is the real reach of this fundamental right in terms of its holders? Are affected communities also entitled to claim the fundamental right to participation as entrenched in article 13 of the Charter?
The African Charter consists of both individual and collective rights. It is in the latter category that people’s rights that apply to groups and communities are found. Concerning the fundamental right to participate in the government in article 13 (1), it has been formulated as an individual right. This provision starts by the expression “every citizen”.
This formulation has the double implication that, on the one hand, it is a right that rights originally designed for individuals rather than a group, and, on the other hand, a right that is solely reserved to individuals who are citizens of the country where participation to the government is envisaged. Therefore, the question that may be asked is: because the fundamental right to participate in government has an individual dimension, can an affected community which is obviously a group, rely on it?
As will be demonstrated in the review of the jurisprudence of the the African Commission, this fundamental right has been granted an extensive interpretation to such an extent that affected communities are entitled to claim their effective participation in the governance of mineral resources. But, the practical question is, how?
Before reviewing the jurisprudence and answering this question, it is worthy to note with Ougeurgouz that the reach of this fundamental right includes not only direct democracy, but also indirect and semi-democracies.661 This means that the right can be exercised directly or indirectly or even in a mixed system, depending on arrangements made within a particular society. But as already mentioned in the previous chapter, this study advocates the middle path (semi-democratic participation) as the best model that can fit within the current situation of affected communities in the African mineral sector.

Interpretation of the right in the jurisprudence of the African Commission

The right to participate in the government has been mentioned in many cases submitted before the African Commission. But in most cases, it has been in connection with matters concerning individuals rather than a group or community.662 Moreover, this right has been discussed more in its dimension as a fundamental right to vote and stand for election. This is probably what led Bojosi to observe that formally, states are required to do no more beyond the facilitation of free, fair and periodic elections.663 This view would be accurate only in so far as the fundamental right to participate in the government can be reduced to the ability to vote and stand for election. But because in practice this fundamental right should go beyond these exercises, such an interpretation appears limited. For instance in a context of direct democracy, people do not need to choose representatives to decide on their behalf. In this case, the need for election disappears, while the one for participation still subsists. Furthermore, even where representatives are to be chosen, the fundamental right to participate in the government should imply also the possibility for the people to check on decisions made on their behalf after elections and make their representatives accountable at any stage of governance. The argument here can be deduced from the similitude made by the African Commission between the concept of “government” and “governance” in Lawyers of Human Rights v. Sudan.664 Interpreting article 13 (1), the African Commission observed that “political parties are one means through which citizens can “participate in governance”.665 Thus, if “participate in the government” equals “participate in governance”, it becomes clear that this fundamental right must enjoy an extensive interpretation because, as defined in this study, governance is not only concerned with structural aspects that include institutions and actors who exercise the power to decide within the state, but also with all steps taken and how they are coordinated to produce decisions on matters of public interest.666 Therefore, to reduce the understanding of the fundamental right to participate in the government simply to a right available only during an electoral process would be prejudicial to citizens as it will prevent them from getting involved in decision-making on non-electoral matters. They will not enjoy full packages of opportunities that democratic governance is supposed to offer in terms of participation.
Along the same line, Bojosi rightly observes that the restrictive interpretation of this fundamental right bears the dangers that some ethnic subgroups may not be adequately represented in the government as a result of the election outcome.667 In fact, the statement of this scholar who advocates a broad interpretation as to who are the holders of this fundamental right, seems to read in the provision of article 13 (1) the fact that groups are also concerned with the enjoyment of this right. Without embracing the issue of “adequacy” in representation, the African Commission decision in Katangese Peoples’ Congress (KPC) v. Zaire668 provided an affirmative answer to the question. People or groups can indeed claim their fundamental right to participate in the government as an entity. In the Katangese case, Moke, a leader of the KPC, the only political party at that time representing the people of Katanga, brought a collective demand before the African Commission trying to rely on provisions of the African Charter to achieve the independence of Katanga.669 Deciding on the merits of the case, the African Commission held that:
in the absence of evidence that the people of Katanga are denied the right to participate in government (…), Katanga is obliged to exercise a variant of self determination that is compatible with sovereignty and territorial integrity of Zaïre.670
What is interesting to note here is that the African Commission argument rested on the view that violation would have occurred if the Katangese people were “denied the right to participate in government”.671 In other words, the African Commission interpreted this fundamental right as applying to the Katangese as a “people”. The certainty about this comes from the fact that the African Commission, when developing its line of reasoning, made a direct link with the exercise of self-determination which is entrenched as a people’s right. Actually, on the one hand, the view of the African Commission suggests that if the Katangese people were really denied participation in the government, then as a “people”, they would have qualified to exercise the variant of self-determination that leads a group of peoples to become independent and form a new state. The African Commission statement may lead to the general deduction that article 13 can enjoy a collective application as well and be relied on by groups or communities to take part in decisions having a direct impact on them. Affected communities can indeed rely on the provisions of this article to claim a fundamental right to participate in the governance of mineral resources.

The rights to receive information and to express and disseminate one’s opinions

Scope of the rights

Article 9 of the African Charter provides that “Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.”
The rights contained in this provision are actually interdependent. Indeed, it is quite difficult to express and disseminate one’s opinion without having the appropriate information. This is what explains the fact that this fundamental right is analysed under the first dimension which looks at community participation as a fundamental right. It is assumed here that information is part of the process of participation. If affected communities must participate in mineral policy and projects, they are supposed to express views on relevant questions in connection to their welfare and livelihood with the view to secure their rights and interests. For such a purpose, they need to be provided with the appropriate information. In 2002, the African Commission adopted a declaration of principles on freedom of expression in Africa where it asserted that the fundamental rights in article 9 are particularly critical when the information sought is necessary for the exercise or the protection of any of the fundamental rights in the Charter.672 Actually, freedom to access information is a key element that brings transparency and accountability in governance, it enables citizens to perceive how public affairs are managed and facilitates the exposure of any form of corruption;673 it constitutes a powerful tool by which people may check how far their fundamental rights and interests are given priority in the governance.
If community participation must be equalized to a right to prior informed consent, affected communities should dispose of relevant information concerning the mineral project for which they are called to express their view.674 In this regard, Ward explained that:
for a process to be informed, all parties involved, including the state, private industry, and the affected indigenous peoples, must have access to and share accurate information regarding potential impacts of a project…675
Thus, if affected communities have to express and disseminate their opinions in the governance of mineral resources, the disclosure of information is compulsory. Nevertheless, since the fundamental rights in article 9 have been given an individual dimension as well, the question will raise also as to whether affected communities are entitled to rely on them as a group. In addition, some other important issues to deal with are whether access to information and freedom of expression are regulated in the national law in accordance with standards developed by the African Commission and then whether the African Charter can be used as a tool to claim information from private parties such as mineral corporations. The answers to these questions determine how far the holders of these fundament rights in article 9 can go in requesting information and expressing their views in connection with governance of public matters.
The fundamental rights to receive information, to express and disseminate one’s opinions that have been ensconced also as individual rights were identified as well by the African Commission as a cornerstone of democracy.676 This is obviously because freedom of expression is the sine qua non condition for the existence of any democracy.
According to Somovia, to inform and be informed is a social need that is an essential component in the improvement of mankind and in a society’s capacity for development.677 This statement implies that information is not only a need for individuals but also for a group or community of people in their quest for the achievement of developmental goals. Somovia even goes further in comparing information to health, food, housing, education and employment because as these latter needs, it plays a relevant role in the realisation of development.678 As to the expression or dissemination of information, though it stands as a seed of freedom of expression which actually is a fundamental right that is practically exercised at the level of each individual or human being, the fact that identity or similarity of opinion may exist between several people makes it possible to bring out a collective expression or dissemination of opinion. This double dimension of freedom of expression is well explained by Verpeaux who points out that:
Freedom of expression possesses the specific characteristic of being an individual right which stems from every one’s spiritual freedom but which is conceivable only for communication with others. It then has a collective or public dimension. It necessarily has a collective dimension because expression means something only if addressed to others.679
Verpeaux’s remarks imply that expression of opinion is necessarily part of an issue or debate that interests a group of people. This is particularly true in respect of a majoritarian model of democracy where the view of the majority emerges from an addition of individual opinions that converge.
Making a comment in respect of communities’ environmental rights in Zambia, the World Bank observes that effective consultations between stakeholders require inter alia having access to background information related to the health and environmental impacts of different sources which may have caused pollution in the past.680 This assertion demonstrates the important role that individual fundamental rights may play in the implementation of other fundamental rights in their collective dimension. Nevertheless, before reviewing the jurisprudence of the African Commission in support of this collective dimension of the rights, one important remark needs to be made. This is related to the formulation of article 9. Actually the fact that this article requires the exercise of the right to express or disseminate opinions to be “within the law” is likely to circumscribe the reach of this right because such a formulation constitutes what is often described as a “claw back clause”.
Claw back clauses are the ones that permit the state to limit fundamental rights ab initio within provisions of domestic law and without underlying circumstances within which these rights may be restricted. This wide discretion conferred to national legislation is uncommon compared to other international instruments on fundamental rights where one finds instead derogation clauses that allow the state to limit only certain rights during the time of war or public emergencies (see for instance article 4 of the ICCPR, article 15 of the ECHR). Under derogation clauses, some rights, for instance, the right to life and the right to freedom from torture and inhuman treatment, are declared non-derogable in all circumstances while precise conditions and legal requirements are set up for permissible derogation for others rights.681 As aptly observed by Hansungule, there is little or even no room for arbitrariness under derogation clauses due to precisions they offer, while under claw-back clauses opportunities for abuses are there because of the considerable discretion afforded to the state.682 But in practice, as reflected in the work of the African Commission, some provisions of the Charter may be used to attenuate the negative effects of claw-back clauses. First of all, the African Commission had the opportunity to determine that:
The only legitimate reasons for limitations to the rights and freedoms of the African Charter are found in article 27.2, that is that the rights of the Charter ‘shall be exercised with due regard to the rights of others, collective security, morality and common interest’.683
Commenting on article 27 (2), Ougeurgouz observes that since the aim of this provision is to reconcile the exercise of fundamental rights in the Charter with the protection of certain relevant interests, it would be wrong to place any other limitations that are not necessary to protect the said interests.684 This view seems accurate in so far as, the interpretation of article 27 (2) given by the African Commission suggests that limitations that do not fulfil this purpose are “illegitimate”.685 But practically, this interpretation of the African Commission is not a totally satisfactory solution because several reasons may be brought forward by the government under the labels of “collective security”, “morality” and “common interest”. The interpretation of interests as enumerated in article 27 (2) of the African Charter must be very strict to avoid abuses by African governments.This is why the second restriction to claw-back clauses found in the work of the African Commission is of great relevance. Using the opportunity to rely on general rules and principles of international law offered by the African Charter in its articles 60-61, the African Commission has specified that national authorities should not enact provisions which restrict fundamental rights and freedoms in the Charter contrarily to international law standards.686 This implies that any restriction that stands in stark contrast to developments made in international law customs, conventions and jurisprudences related to fundamental rights, should not be acceptable. In this respect, the principle developed within the UN may be of considerable importance concerning the right to information. Indeed, according to the principles endorsed in 2000 by the UN Special Rappoteur on the issue:
A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest.687
More specifically, in its Declaration on Principles on Freedom of Expression in Africa, the African Commission emphasised that “Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts.”688
These two principles suggest that, under international standards, reasons for a refusal of disclosure must be strictly enumerated within the national legislation, that in no case they should aim at hiding a wrongdoing and that they may be subject to an appeal before a quasi-judicial or a judicial body.
Also, concerning the reach of the right to information in article 9, though it is basically public information held by the state that is primarily targeted, the African Commission has underlined the principle that information held by private bodies (for instance mineral companies) must also be accessible whenever they are necessary for the exercise or protection of any right.689 This presages some measures of horizontal applicability of fundamental rights contained in the African Charter. In Zambia, a lack of clarity on the procedure that the mineral company used to select community projects was perceived by the Kyafukuma community in Solwezi as a barrier to their development, to such an extent that one of its members contended that projects realised by the firm represented a drop in the ocean compared to revenues it generated.690 More specially, because of the relevant role that NGOs have played in the advocacy of affected communities in Africa, an open-question is whether they can legitimately request information from the state or private organisations whenever they stand for the cause of anyone of these communities.This happened with Amnesty International which at several occasions requested information from mineral corporations, but without success.691 As a result, this international non-profit organisation has come up with the conclusion that mineral companies are often reluctant to disclose information on how their activities will affect people.692 Amnesty International describes the situation in the following words:
While some information may legitimately be considered confidential, companies frequently take the approach that they will not disclose data unless required to by law. Amnesty International found a general reluctance among companies to disclose information on the environmental and social impacts of their operations. Although companies claim to have undertaken studies on a range of such important issues as health and fisheries, these studies are rarely made available. [A company X]693 claimed to have undertaken studies on marine resources and to have commissioned a study called ‘Air Quality, Precipitation and Corrosion Studies of Qua Iboe Terminal (QIT) Flares and Environs’. Amnesty International asked [company X] for copies of these studies but did not receive them.In 2006, [a company Y] reportedly carried out a study that looked at the impact on marine life of wastewater disposed of at sea. Amnesty International could not find this study and received no response from [company Y] to a request for a copy. During an interview with Amnesty International in Port Harcourt on 1 April 2008, [company Y] claimed to have studies that looked at a range of impacts of oil operations, which the company said it would supply. Amnesty International never received any of these studies. In response to a request for information from Amnesty International, [a company z] claimed that it had to have permission from the Nigerian National Petroleum Company (NNPC) and the Department of Petroleum Resources (DPR), the partner organization and regulator respectively, in order to release environmental data. When Amnesty International asked if NNPC or DPR had ever refused to allow [company z] to provide communities or NGOs with environmental data, the company said they did not believe so, but that was apparently because they had never asked NNPC or DPR if they could release such information. [Company z] has operated in the Niger Delta almost half a century.694
This description by Amnesty is just indicative of strained relations that generally exist between companies and NGOs in the extractive industry. In this respect, what is obvious thus far is that if NGOs would be entitled to request the disclosure of information, it would only be as the result of the fact that they are acting on behalf of the holders of these fundamental rights, namely affected communities. How far they can act in this regard enters in the scope of the general discussion in the coming section dedicated to the analysis of the locus standi.

TABLE OF CONTENTS
Dedication
Declaration
Acknowledgements
List of Acronyms
Abstract
Key words
Table of contents
Chapter one: Introduction
1.1 Background to the study
1.2. Research problem and subject matter
1.3 Aims and significance
1.4 Scope and delimitation
1.5 Literature review
1.6 Research questions
1.7 Hypotheses and expected findings
1.8 Methodology
1.9. Difficulties encountered in the completion of the thesis
1.10 Outline of the study
Chapter two: Theoretical considerations on community participation
2.1 Introduction
2.2 Community participation
2.3. Content of community participation under the fundament rights-based approach
2.4 Community participation and related concepts
2.5 Conclusion
Chapter three: Community participation and the normative components of the African Charter on Human and People’s Rights
3.1 Introduction
3.2 Review of the normative aspects
3.3 Conclusion
Chapter four: Enforcing community participation under the institutional frameworks of the African Charter
4.1 Introduction
4.2 The perquisite of local remedies exhaustion and domestic courts
4.3 Second level of enforcement: The African Commission
4.4 Third level of enforcement: African Court
4.5 Schematic presentation of the ways affected communities can make use of the African
Charter enforcement machineries
4.6 Conclusion
Chapter five: Challenges to the fundamental rights-based approach to community participation under the African Charter on Human and Peoples’ Rights
5.1 Introduction
5.2 The necessity to update the mineral legislation and effectively implement its provisions
5.3 Empowering affected communities through capacity building
5.4. Access to the African Court as a challenge
5.5 Enforcement of regional decisions and political wil as challenges
5.6 Conclusion
Chapter six: Conclusions: summary of findings and recommendations
6.1 Introduction
6.2 Findings
6.3 Recommendations
6.4 Questions for further research
Bibliography
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