The Right to Development in the African Human Rights System

193 Pages·2018·1.351 MB·English

by  Serges Djoyou Kamga

The Right to Development in the
African Human Rights System
The right to development (RTD) seeks to address global inequities hidden in
world politics and global institutions through the game of influences played by
powerful actors. The negative impacts of the Atlantic slave trade, colonialism and
the subjugation of Africa through globalisation and its institutions are key factors
that have caused Africa and African people claiming their RTD.
This book examines how the African continent protects the right to development,
examining the nature of the RTD and controversies surrounding it and how it is
implemented. The book then goes on to explore the RTD at the regional level
including through the jurisprudence of the African Commission and the African
Court on Human Rights, at the sub-regional level including in sub-regional courts
and tribunals, at the national levels through case studies and through the African
Union governance institutions. Through this examination, the author unveils what
the prospects and challenges are to the realisation of the RTD in Africa.
Serges Djoyou Kamga is Associate Professor at the Thabo Mbeki African
Leadership Institute, University of South Africa.
Global Africa
Series Editors: Toyin Falola and Roy Doron
1 Dissent, Protest and Dispute in Africa
Edited by Emmanuel M. Mbah and Toyin Falola
2 Environment and Identity Politics in Colonial Africa
Emmanuel M. Mbah
3 Poverty Reduction Strategies in Africa
Edited by Toyin Falola and Mike Odugbo Odey
4 Literature and Culture in Global Africa
Tanure Ojaide
5 Gendering Knowledge in Africa and the African Diaspora
Contesting History and Power
Edited by Toyin Falola and Olajumoke Yacob-Haliso
6 The African Metropolis
Struggles over Urban Space, Citizenship, and Rights to the City
Edited by Toyin Falola and Bisola Falola
7 Africa’s Big Men
Predatory State – Society Relations in Africa
Edited by Kenneth Kalu, Olajumoke Yacob-Haliso and Toyin Falola
8 The Right to Development in the African Human Rights System
Serges Djoyou Kamga
The Right to Development
in the African Human
Rights System
Serges Djoyou Kamga
First published 2018
by Routledge
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© 2018 Serges Djoyou Kamga
The right of Serges Djoyou Kamga to be identified as author of this work
has been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Kamga, Serges Djoyou (Serges Alain Djoyou Kamga), author.
Title: The right to development in the African human rights system/Serges
Djoyou Kamga.
Description: New York, NY : Routledge, 2018. | Series: Global Africa ; 8 |
Includes bibliographical references and index.
Identifiers: LCCN 2017048347 | ISBN 9780815350408 (hbk) | ISBN
9781351142489 (e-book)
Subjects: LCSH: Human rights—Africa. | Right to development—Africa.
Classification: LCC KQC572. K36 2018 | DDC 342.9608/5—dc23
LC record available at https://lccn.loc.gov/2017048347
ISBN: 978-0-8153-5040-8 (hbk)
ISBN: 978-1-351-14248-9 (ebk)
Typeset in Times New Roman
by Apex CoVantage, LLC
Contents
1. Introduction 1
1.1. Introduction and overview 1
1.2. The right to development: historical background 2
1.2.1. The slave trade 2
1.2.2. Colonialism 3
1.2.3. Subjugation of Africa in post-colonial time 6
1.3. The right to development: theoretical foundations 8
1.4. Scope of the book 9
1.5. Concluding remarks 10
2. Unpacking the right to development 12
2.1. Introduction 12
2.2. The content of the right to development 12
2.2.1. The right to development as a non-negotiable right 13
2.2.2. The right to partaking is central to the right to
development 14
2.2.3. The right to development as a combined human
right 15
2.2.4. The right to self-determination: an essential
element of the right to development 20
2.3. The right to development: a contentious human right 21
2.3.1. The controversy in academic arenas 22
2.3.2. Controversy at the UN 30
2.4. The legal force of the right to development 35
2.5. Concluding remarks 42
3. The implementation of the right to development 43
3.1. Introduction 43
3.2. The duty bearers of the right to development 43
3.2.1. The state and the implementation of the right to
development 43
vi Contents
3.2.2. The international community and the realisation of the
right to development 45
3.3. The right-holders of the right to development 73
3.3.1. Individuals as beneficiaries of the right to
development 73
3.3.2. Peoples as beneficiaries of the right to development 74
3.3.3. The state as the beneficiary of the right to
development 75
3.4. Concluding remarks 76
4. The right to development in the African human rights
architecture: its reception at the regional, sub-regional and
national levels 77
4.1. Introduction 77
4.2. Normative protection of the right to development at the
regional level 78
4.2.1. The right to development in the African Charter on
Human and Peoples’ Rights 78
4.2.2. The right to development in the Protocol to the ACHPR
on the Rights of Women in Africa 81
4.2.3. The right to development in the African Charter on the
rights and welfare of the child 82
4.3. The right to development in the African sub-regional
instruments 82
4.3.1. Background of regional integration 82
4.3.2. Regional Economic Communities, human rights and
the right to development 84
4.4. The right to development in selected national laws 90
4.4.1. Rationale to examine the reception of the right to
development at the national level 90
4.4.2. Cameroon 91
4.4.3. Uganda 95
4.4.4. Malawi 97
4.4.5. Ethiopia 99
4.4.6. South Africa 100
4.5. Concluding remarks 103
5. The African Commission, the African Court on Human
Rights and the realisation of the right to development 105
5.1. Introduction 105
Contents vii
5.2. The African Commission and the realisation of the right to
development 105
5.2.1. The protective mandate of the African Commission and
the right to development 106
5.2.2. Promotional mandate and the right to
development 126
5.3. The African Court on Human Rights and the right to
development 130
5.3.1. The African Court on Human Rights: an overview of its
establishment 131
5.3.2. The African Court on Human Rights, its mandate and
the right to development 131
5.3.3. The significance of the Ogiek case 135
5.4. Concluding remarks 136
6. The African Union governance institutions and
the right to development 138
6.1. Introduction 138
6.2. The African Union Assembly and the realisation of the right
to development 138
6.3. The AU Executive Council and the realisation of the right
to development 139
6.4. The Permanent Representatives Committee and the
realisation of the right to development 140
6.5. The Peace and Security Council and the realisation of the
right to development 141
6.6. The Pan-African Parliament and the realisation of the right
to development 143
6.7. NEPAD, APRM and the realisation of the right to
development 144
6.7.1. NEPAD and the right to development 145
6.7.2. The APRM and the right to development 150
6.8. Concluding remarks 156
7. The way forward for the realisation of the right to
development in Africa 158
7.1. Introduction 158
7.2. Closing remarks 158
7.3. Towards an Africa where the right to development is a
reality 161
viii Contents
7.3.1. At the regional level 161
7.3.2. At the sub-regional level 162
7.3.3. At the national level 163
7.3.4. The political organs of the AU 163
7.4. What will it take for these prescriptions to become
realities? 164
7.4.1. The role of intellectuals 164
7.4.2. The role of African governments 165
7.4.3. The role of civil society 166
Selected bibliography 167
Index 177
1 Introduction
1.1. Introduction and overview
There is a plethora of scholarly works and especially books on the right to devel-
opment (RTD). Nevertheless, these books focus mostly on the RTD at the global
level. Although there are some chapters in books1 and articles2 on the RTD in
Africa, the only book on the RTD on the continent is a 34-page book written back
in 19893 when the contents and the justiciability of the RTD were yet to be tested.
Therefore, there is absolutely no doubt that there is a gap on the literature on RTD
in the African human rights system. This book seeks to close this gap by provid-
ing the first volume that explores the RTD in its entirety in Africa. This introduc-
tory chapter is divided into five parts including this introduction. The second part
examines the historical development of the RTD; the third subsection focuses on
its theoretical foundation; the fourth part presents the scope of the book and the
fifth part provides concluding remarks.
1 E. Bello. ‘Article 22 of the African Charter on Human and Peoples’ Rights’ In Bello, E. and Adji-
bola, B. (eds.) Essay in Honour of Judge Taslim Olawale Elias (Martinus Nijhoff 1992); O. C. Oka-
for. ‘ “Righting” The Right to Development: A Socio-Legal Analysis of Article 22 of the African
Charter of Human and Peoples’ Rights’ In Marks, S. (ed.) Implementing the Right to Development:
The Role of International Law (Friedricht Ebert Stiftung 2008); O. C. Okafor. ‘A Regional Perspec-
tive: Article 22 of the African Charter on Human and Peoples’ Rights’ in UN Human Rights Office
of the High Commissioner (ed.) Realizing the Right to Development – Essays in Commemoration of
25 Years of the United Nations Declaration on the Right to Development (UN 2013), 373–383; R.
Rich. ‘The Right to Development: A Right of Peoples?’ In Crawford, J. (ed.) The Rights of Peoples
(Clarendon Press 1988).
2 N. J. Udombana. ‘The Third Word and the Right to Development: Agenda for the Next Millennium’
(2000) 22 Human Rights Quarterly 759; S. D. Kamga and C. M. Fombad. ‘A Critical Review of the
Jurisprudence of the African Commission on the Right to Development’ (2013) 57(2) Journal of
African Law 196; S. D. Kamga. ‘The Right to Development in the African Human Rights System:
The Endorois Case’ (2011) De Jure 381; C. R. Mahalu. ‘Human Rights and Development: An Afri-
can Perspective’ (2009) 1(1) Leiden Journal of International Law 15; O. Oduwole. ‘International
Law and the Right to Development: A Pragmatic Approach for Africa’ (2014) International Insti-
tute of Social Studies 1; G. W. Shepherd. ‘The African Right to Development: World Policy and the
Debt Crisis’ (1990) 37(4) Africa Today 5.
3 T. A. Aguda. Human Rights and the Right to Development in Africa (Nigerian Institute of Interna-
tional Affairs 1989).