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Understanding, defining and justifying democracy
The concept of democracy has been a contentious term for a long time and when it is discussed in the context of Africa it becomes even more contentious. The fact that the term is more often than not fluid or contextual makes it even more problematic. Many reasons have been attributed to the problematic conception of democracy and as one reads more about ‘democracy’ as a concept, it is intriguing that no definitional consensus has been arrived at about such an important conception.7 Theorists disagree about whether democracy is anything more than a procedural idea.8 That notwithstanding, the pervasive nature of democracy in the general affairs of states continues to exist and democracy continues to occupy the minds of many.
As highlighted above, the definition of democracy is very problematic as it is defined by various people, from various perspectives and for various purposes. The concept of democracy is contestable and to that extent remains an indefinite concept. That is to say, democracy is largely defined by the specific political temperature of a particular state and its attendant institutional framework, explaining why to date there is no universal definition of democracy. It is therefore difficult to discuss democracy without indulging in qualifications. That is why Roux rightly pointed out that ‘democracy is a noun permanently in search of a qualifying adjective.’9 This, from thewritings on democracy, is a practice that has crystallised into a norm no longer puzzling or annoying to political scientists. It appears that there is somewhat a general consensus that democracy seem to be under threat and with Africa in mind one is easily tempted to conclude that that might actually be true. Further, there is a tendency on the part of theorists to focus on the capacity of institutions such as parliaments to entertain diverse ideas as an indication of democracy within a particular country. As a result, many states claim to be democratic, including states which are repressive in nature or have an intolerant and anti-democratic character traceable to the repression and lack of democratic preparation during colonial rule.10
Democracy has been defined as ‘a form of government in which, in contradistinction to monarchies and aristocracies, the people rule.’11 According to Held, ‘democracy entails a political community in which there is some form of political equality among the people.’12 Democracy is also usually characterised as a political lifestyle within which social and economic equality prevails, the press is free, where there is impartial politics and enjoyment of individual liberties with constitutional limitations placed upon those in power by the people.13 Democracy means different things depending on the individual, ideology, paradigm, culture and context.14 Diamond posits that democracy is usually reflective of the political climate of the time and is used to signify the desirable end-state of many social, economic and political pursuits, or to self-designate and legitimise existing structures.15 To some, democracy is synonymous with the equality of all citizens within a particular state in all areas of life, while to some democracy is an expression of the will of the people.16 Democracy has further been defined as ‘a political system with governments elected by popular majority, and with the rule of law enshrined to protect those not in the majority’.17 The Vienna Declaration and Programme of Action conclude that ‘democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.’18
Democracy, law and human rights: An interface?
Since World War II, protecting human rights has become more and more prominent to the world. In the period since World War II, a growing number of democracies have empowered the courts to enforce constitutional norms that mirror international human rights standards.164 Democracies have also sought to create an environment within which they will effectively guarantee these rights.Democratization and the respect for human rights have come to be known as the two main goals that should be adhered to by democracies.165 It is not at all surprising to find that in most supranational instruments and in international, regional and national policies or strategies, the words ‘democracy’ and ‘human rights’ appear together in one sentence. There is growing concern for democratization in Africa, respect for rule of law, adherence to principles of good governance and the protection and promotion of human rights by states. On the face of it, this might seem insignificant. When seriously analyzed, the concern signifies a growing understanding of the interdependence of human rights, development and democracy. Growing discourses of democracy and human rights continue to struggle to situate the one within the other as there is some form of urgency in ensuring that leaders appreciate the interdependence of the two concepts. Unfortunately, such discourses raise more questions than answers. For example, the question arises as to whether there is really a link between human rights and democracy. Perhaps this is because democracy and human rights have historically been considered to be two distinct concepts ‘occupying different area of political sphere: the one a matter of the organization of government, the other a question of individual rights and their defence.’166 Beetham points out that these distinctions have been further reinforced by an academic division of labour which saw the study of democracy being relegated to political science and that of human rights as falling within the confines of law and jurisprudence, two disciplines which Beetham argues, had very little connection in the Anglo Saxon world.167 This assertion by Beetham is buttressed by Landman when he points out that ‘political science has not always been interested in human rights, even though in my view the kinds of questions that human rights scholars and practitioners pose are at the core of what the discipline has been studying since the days of Aristotle.’168
Proponents of what has come to be known as the ‘separationist thesis’ have vigorously opposed the argument that there exists a link between democracy and human rights. This is not surprising considering that the internationalization of democracy and human rights has been met, in some instances, with considerable resistance in many forms and for different reasons.169 The separationist thesis posits that ‘detaching human rights from democratization and Western values can avoid stimulating culturally conservative and reactionary nationalism.’170 It has been argued further that the United States of America (USA) should separate human rights from democratization and that ‘it was important to separate human rights from democratization and treat it as the international idea that it is, not as a code word for Westernization.’171 The main proposition of the separationist thesis is that democracy is not necessary for the promotion and protection of human rights.172 Hence, the argument goes, if one assumes that democracy has to come before or alongside the observance of human rights then there will be an indefinite delay in the enjoyment of human rights.173
The advent of the Pan-African Parliament and the relevance of its human rights mandate
While it is a given that parliaments are relevant to the promotion of human rights, it does not follow that a particular parliament or national assembly is indeed committed to the promotion of human rights. Further – and at the expense of being accused of self-contradiction – its relevance to the promotion of human rights within a particular system may indeed be questionable. Of particular interest here is the fact that national parliaments do exert some form of influence on their national governments while in respect of RPAs it is not clear, maybe with the exception of the EP, whether that is actually the case. Mashele rightly questions whether the executive would allow ‘the PAP the critical space to take positions that are radically incongrRPAsuent with those held by the PRC, the EC and the AU Summit’’367 It is important to reiterate that the existing human rights mechanisms in Africa or within the African human rights system are elitist, inaccessible and their impact on the lives of Africans questionable. The ‘people’ based PAP is supposed to be a deviation from this situation. The PAP Protocol brought promises of having a bottom-up approach to the needs of Africans in so far as political and socio-economic development is concerned. It promises to address the needs of Africans by being an ‘accessible, transparent and caring institution of and for the peoples of Africa and beyond.’368
Above I have highlighted the truism that participation in the decision-making process by the people is important. Without taking part in the decision-making process of a particular system, the rights of citizens will not be adequately catered for. I have also highlighted the position held by Waldron that participation is not only important because of the right to vote, but also because ‘what happens in the political process determines not only what our social goals are, but also the content and distribution of individuals’ rights.’369 It is this position, to which I fully subscribe, that cements the argument that the relevance of the human rights mandate of the PAP is and should be seen as the fulcrum of all the other aspects of the mandate of the PAP. The inevitability of achieving the ideals embodied in various instruments relating to the establishment and functioning of the PAP through a human rights approach will become apparent when its various human rights activities are discussed. The relevance of the human rights mandate of the PAP also becomes important in so far as the achievement of the wider objectives of the PAP, such as the promotion of democracy, encouraging good governance, transparency and accountability, is concerned. The relevance of the human rights mandate of the PAP also becomes distinct in the light of the role parliaments in the promotion of human rights, as discussed above. As it will also become clear once the activities of the PAP are fully laid out in the following chapters, RPAs, including the PAP, are involved in many issues of global importance such as corruption, women’s rights, conflict resolution initiatives and other general issues relating to the welfare of the citizenry.370
Furthermore, the fact that the PAP has a human rights mandate is important because of the pervasive weakness of African parliaments. It has been noted that most legislatures in Africa seem to have limited institutional capability to fully represent their citizens, make laws and call strong presidents to account.371 The human rights mandate of the PAP becomes even more important inso far as the strengthening of national parliaments is concerned and the infusion of a rights-based approach in the policy or decision-making processes of African governments. Most national parliaments are regarded as potential agents for democratic change in Africa.372 Whether they are indeed a vehicle for effective change, including advancing the promotion of human rights, is indeed questionable. Acknowledging that not all African parliaments are weak, it is nonetheless worth noting that Africa’s human rights record lends support to the assertion that national parliaments in Africa are failing Africans due to their failure to adopt a rights based approach in their decisionmaking process and in discharging their legislative functions. The PAP may as well be a fair attempt to address this limitation as it has a specific human rights mandate that could be used to influence national parliaments. Through its members who are elected from national parliaments, the PAP could adopt strategies that will create a synergy capable of promoting human rights in Africa.373
Chapter 1 Introduction
1.1 Introduction and background to research
1.2 Objective of the study
1.3 Research questions
1.4 Significance of the study
1.5 Terminology
1.6 Literature review
1.7 Methodology
1.8 Delineation and limitations of study
1.9 Chapter overview
Chapter II Democracy, law and human rights: exploring the interface
2.1 Introduction
2.2 Understanding, defining and justifying democracy
2.3 Understanding and defining human rights
2.4 Democracy, law and human rights: an interface?
2.5 Do parliaments matter? The relevance of parliamentary bodies in the promotion of human rights
2.6 Regionall Parliamentary Assemblies (IPIs): Guardians of human rights?
2.7 The advent of the Pan-African Parliament and the relevance of its human rights mandate
2.8 Concluding remarks
Chapter III The relevance of the structure and mandate of the Pan-African Parliament to the promotion of human rights
3.1 Introduction
3.3 The establishment of the Pan-African Parliament
3.4 The Rules of Procedure of the Pan-African Parliament
3.5 The institutional framework of the Pan-African Parliament relevant to the promotion of human rights
3.6 Main features of the Pan-African Parliament
3.7 Concluding remarks
Chapter IV The Pan-African Parliament and human rights in Africa: An assessment of the record so far
4.1 Introduction
4.2 Understanding the human rights mandate of the Pan-African Parliament
4.3 Mechanisms and strategies for the promotion of human rights by the Pan-African Parliament
4.4 Recommendations by the Pan-African Parliament relating to human rights
4.5 The nature and content of the PAP’s Recommendations
4.6 Fact-finding missions of the Pan-African Parliament
4.7 Reflections on the PAP’s fact-finding missions
4.8 Pan-African Parliament Election Observer missions
4.9 The Parliament’s petition procedure
4.10 Other promotional activities
4.11 Institutional exchange and partnership activities
4.12 Research, study and documentation activities
4.13 Concluding remarks
CHAPTER V The relationship of the Pan-African Parliament with African Union and other African institutions dealing with human rights
5.1 Introduction
5.2 The AU, regional integration and the PAP
5.3 The PAP and AU institutions dealing with human rights
5.4 The PAP and sub-regional parliamentary bodies
5.5 The PAP and institutions at the national level
5.6 The PAP and parliamentary diplomacy
5.7 Concluding remarks
CHAPTER VI Factors affecting the effectiveness of the Pan-African Parliament
6.1 Introduction
6.2 Key internal and external factors affecting the effectiveness of the Pan-African Parliament
6.3 Optimism vs pessimism: What future for the PAP?
6.4 Concluding remarks
CHAPTER VII Conclusion and recommendations
7.1 Summary of findings and conclusions drawn from the study
7.2 Recommendations
