I.    INTRODUCTION

¶ 1         Observers of sub-Saharan Africa (SSA)¹ have no doubt become familiar with media images of one gruesome tragedy or another within the region - tragedies which, although essentially economic in nature, have traditionally been highlighted by human rights advocates in terms of its inability to realize the core rights proclaimed under the International Covenant on Economic, Social and Cultural Rights²: food, healthcare, housing and education.³ Africa thus continues to challenge the most seasoned of political economists, while reaffirming the prejudices of those who continue to believe in the "civilizing virtues" of colonialism. Theories upon theories have been propounded. Countless "initiatives" have failed to make a difference. Africa has been turned into the most aid-dependent region in the world, while its people languish in misery. Put simply, the African status quo represents a depressing case study on how not to realize these basic human rights.

¶ 2         This article aims to revisit some of the debates surrounding this very human (and wholly avoidable) tragedy. The idea is to offer an alternative insight into what might conceivably be the cause of so much human misery. More importantly, the article will examine the possibility of using existing principles of international law (broadly defined) in a way that gives hope to a longsuffering people. In embarking on a critique of this kind, however, it is recognized that questions relating to economic development are best left to political economists. Nevertheless, it is also recognized that the nature of the problem demands some measure of interdisciplinarity, if only because this adds context to any legal analysis that will be offered.

¶ 3         It is also necessary to acknowledge that the usual generalizations about the region can be quite misleading: Although homogenous in many respects, it is in fact an amalgamation of countries with varied characteristics. At two notable extremes are the examples of Mauritius and Botswana, which are not only fairly accountable democracies, but have combined economic growth with the progressive realization of their people's basic economic, social and cultural rights; while others such as the bizarrely named "Democratic Republic" of Congo (which is neither democratic nor a republic), Zimbabwe and Somalia have, to all intents and purposes, ceased to exist as viable States. At the same time, countries such as Senegal, Mali, Burkina Faso, and of late, Mozambique and Uganda, although not paragons of democracy, have either remained or have become relatively stable and are making efforts in the right direction. Still, even these categorizations do not sufficiently capture the sheer diversity of the region: Cape Verde, Sao Tome and Principe, the Comoros, and Guinea Bissau have all managed to survive with relatively few natural resources, while Nigeria, Angola, and, of late, Chad and Equatorial Guinea have all been blessed with substantial quantities of oil, although, as will be shown in Part III, the citizens of most of these countries have become victims rather than beneficiaries of these resources. Even the physical geography of the region could justifiably be seen as an example of its diversity: From countries such as Mauritania, Mali, Niger and Chad which endure the harshness of the Sahara desert, to much of west and central Africa which broadly occupy the equatorial rainforest belt; from tiny island States such as Mauritius and the Seychelles, to much of southern Africa with its semi-arid savannah grasslands, Africa's diversity has always been a surprise to the outsider, prompting one respected commentator to assert:

[W]hen discussing the issue of human rights [on the continent as a whole], it is important to remember that the internal dynamics of individual countries are crucial to an understanding of the overall human rights context...The myriad social, religious, cultural, political and even idiosyncratic distinctions between the countries of the continent all need to be taken into account. Thus, making broad prognostications and drawing sweeping conclusions for a continent as diverse and complex as Africa may be an exercise in futility.⁴

¶ 4         Although the validity of Oloka-Onyango's assertion is beyond doubt, it is also the case that an outright rejection of this "generalized approach" is, more often than not, the first step in an attempt to deny the very existence of certain common features that have come to define much of the region. Many of its countries, for example, have either experienced fratricidal armed conflict of some kind in their post-colonial history, or are still enmeshed in one. Almost without exception, they have, at some stage, been ruled by obnoxious regimes of one description or another - from one-party or military dictatorships, to what are, in essence, criminal gangs operating under the legitimacy of statehood - and in some cases, all of these combined. Except for very few exceptions, such as Botswana, Mauritius and South Africa, no government within the region is willing or able to create the basic institutional and infrastructural capacity necessary for supporting any level of sustained economic activity, and by extension, the realization of basic economic, social and cultural rights (hereinafter economic rights). Indeed, even among the so-called "emerging democracies," very few are truly representative or accountable to their citizens in the manner envisaged under various international human rights instruments.⁵ Nor should the widely acclaimed economic growth in countries such as Mozambique, Rwanda and Uganda be taken out of context: Even if growth were a universally accepted yardstick for measuring human development,⁶ these would still have to be judged against the lowest possible base of past catastrophic conflicts in these countries, none of which, at any rate, has yet regained its modest pre-war prosperity.⁷ Thus, provided the necessary caution is exercised, it is possible to adopt a generalized approach in a project of this kind.

II.    A SNAPSHOT OF THE STATUS QUO

¶ 5         That sub-Saharan Africa has become synonymous with economic underdevelopment is perhaps too obvious to restate. What is often ignored is that as well as being a depressing economic state of affairs, this is also a very human tragedy - and one that appears destined to become much worse as time goes by. A snapshot of the nature of the tragedy is shockingly instructive: More than 300 million Africans - nearly half the region's population - still live in extreme poverty.⁸ The infant mortality rate stands at 91 per 1000 births, while the adult literacy rates for males and females are 30 percent and 47 percent respectively.⁹ According to a recent collaborative report by the World Health Organization, the maternal mortality ratio in Africa stands at 830 per 1000,000, compared with Asia's 330, with Latin America and the Caribbean at 190.¹⁰ As if these were not depressing enough, the HIV/AIDS pandemic is destroying lives on the continent at an alarming rate. A recent United Nations report highlights the problems thus:

Approximately 3.5 million new infections occurred in 2001, bringing to 28.5 million the total number of people living with HIV/AIDS in sub-Saharan Africa. Fewer than 30 000 people were estimated to have been benefiting from antiretroviral drugs at the end of 2001. The estimated number of children orphaned by AIDS living in the region is 11 million. Even if exceptionally effective prevention, treatment and care programmes take hold immediately, the scale of the crisis means that the human and socioeconomic toll will remain significant for many generations. ¹¹

¶ 6         Neither is the situation regarding nutrition any less disturbing. According to a joint UN mission to southern Africa in 2002, 12.8 million people were on the brink of starvation.¹² At the time, aid agencies were quick to blame the recurring spell of drought within the region. The on-going plague of locusts in the Sahel region may also not be man-made, and, like all natural disasters, almost certainly could not have been prevented. The disturbing fact, however, is that very few, if any, governments in SSA ever have in place even the most rudimentary arrangements for any such emergencies.¹³ For example, if nothing else, the provision of simple grain silos would save the ordinary African the indignity - not to mention the agony - of eternally relying on foreign aid when disasters strike.

¶ 7         According to a collaborative study involving several UK government departments, as of 2000 over half of African countries were afflicted by war.¹⁴ In his report to the UN Security Council, the Secretary-General stated:

Since 1970, more than 30 wars have been fought in Africa, the vast majority of them intra-State in origin. In 1996 alone, 14 of the 53 countries of Africa were afflicted by armed conflicts, accounting for more than half of all war-related deaths worldwide and resulting in more than 8 million refugees, returnees and displaced persons.¹⁵

¶ 8         One year later, the Secretary-General also noted: "For many people in other parts of the world, the mention of Africa evokes images of civil unrest, war, poverty, disease, and mounting social problems. Unfortunately, these images are not just fiction..."¹⁶ With all of these factors at play - in some countries at the same time - it is little wonder that the life expectancy at birth in the region is only 47 years.¹⁷ It also comes as no surprise that Africa has already become the only region in the world to miss the crucial economic benchmarks for meeting the UN's Millennium Development Goals (which include the reduction of poverty by half by 2015);¹⁸ as well as being the only region to have become poorer within the past 25 years.¹⁹

III.    POST-INDEPENDENCE AFRICA: THE BETRAYAL OF A PEOPLE

¶ 9         The crimes that were committed against the people of Africa during the period of colonization are of course a matter of record. From the systematic massacre and gratuitous mutilations of some 10-20 million Congolese people under Belgian King Leopold's "rubber regime,"²⁰ to the effective appropriation of the continent at the Berlin Conference; from the conscious desecration of traditional societal arrangements²¹ to the systematic process of economic underdevelopment,²² colonialism constituted a deliberate dehumanization of a people in every imaginable respect. Moreover, it was a flagrant violation of the basic right to self-determination as proclaimed, at the time, under the UN Charter.²³ Indeed, even without the untold suffering and countless deaths that defined the trans-Atlantic slave trade,²⁴ these crimes were in themselves sufficiently serious to warrant a struggle for independence and self-determination.

¶ 10         Regrettably, however, independence for ordinary Africans has meant a life of even more flagrant human rights violations—in many instances by their supposed liberators. From the very beginning, the creation of the Organization of African Unity (OAU) in 1963²⁵ heralded the birth of an institution which was to become, whether by design or not, a legal framework for the perpetuation - and in many cases the aggravation - of the people's misery. The principles of non-interference and fraternal solidarity became the overriding considerations in inter-African affairs. From a human rights perspective, this meant that even the abuses that characterised the immediate post-independence period received the approval of the organization, at least insofar as it actively discouraged any external inquiry. It follows that even the grisly violations that occurred under Idi Amin in Uganda, Marcias Nguema in Equatorial Guinea, and "Emperor" Jean-Bedel Bokassa in the Central African Republic only managed to attract criticisms from very few Africa rulers, such as Nyerere of Tanzania and Kaunda of Zambia.²⁶ Indeed, as a veteran of the United Nations human rights system, Philip Alston reveals that an attempt to include some of Amin's excesses - e.g., the massacre of 75,000 of his fellow citizens within four years of coming to power - on the agenda of the UN Commission on Human Rights for consideration met with strong opposition from African delegates, supposedly because Amin was the chairman of the OAU.²⁷ This resistance to scrutiny has continued to this date, the most recent being the disingenuous protection of Charles Taylor by the Obasanjo regime in Nigeria²⁸ from a UN-backed war crimes indictment for his role in the grisly violations that defined the Sierra Leonean civil war.²⁹

¶ 11         To be sure, the OAU Charter did make references to human rights concerns, including the principles of the UN Charter and of the UDHR, but only to the extent that they both "provide a solid foundation for peaceful and positive cooperation among States".³⁰ There was also an allusion to "the welfare and well-being" of the people.³¹ Nevertheless, it soon became clear that any reference to international human rights norms was simply a hollow proclamation. At any rate, events on the ground proved that the promotion of the "unity and solidarity of the African States" and the defence of "their sovereignty, their territorial integrity and independence",³² however perversely interpreted, were to be the cornerstone of its Charter, as was the principle of non-interference in the internal affairs of member States.³³

¶ 12         Oji Umozurike, who was later to become a Chairman of the African Commission on Human Rights, articulated the prevailing attitude within the OAU thus: "The OAU maintained an indifferent attitude to the suppression of human rights in a number of independent African states by unduly emphasising the principle of noninterference..."³⁴ Of particular interest is what amounted to a direct admission by Sekou Toure of Guinea that the organization was not "a tribunal which could sit in judgment on any member state's internal affairs."³⁵ Moreover, the rights of individuals were usurped by "the State" in the name of "collective rights," often in support of a perverse notion of "African values" or of Marxism - an ideology which had become fashionable at the time, but which very few of the region's rulers seemed to understand. As one commentator noted: "Although claimed in the name of African ideals, collective rights serve state interests as well as the few who control state resources...[M]ost violations of human rights are often against those who speak out against the corrupt use of state resources."³⁶ Neither was economic development—and by extension, the realization of economic rights—a priority. As noted by the late Claude Ake, "[t]he struggle for power was so absorbing that everything else, including development, was marginalized."³⁷

¶ 13         The indigent people of Africa have thus become caught in a tragic paradox: they were "liberated" from the yoke of colonial exploitation and all that went with it, only to become trapped in what have been decades of tyrannical misrule, systematic impoverishment, and merciless exploitation by their own rulers. It follows that the ideals of economic emancipation - the supposed inspiration behind the quest for independence - has become the subject of escapist antics,³⁸ grandiloquent rhetoric,³⁹ and/or outright buffoonery.⁴⁰ Indeed, although political power no longer seems to induce the same degree of psychosis that appeared to be commonplace in the Banda and Amin days,⁴¹ countries such as Zimbabwe, Guinea Bissau and Equatorial Guinea have still not managed to escape the scourge of psychotic tyranny. It comes as no surprise therefore, that twenty-nine of the thirty-four - over 85 percent - of the poorest countries in the world (in terms of human development) are from SSA.⁴²

¶ 14         It was no less a person than the UN Secretary-General who asserted thus in 1999: "For many people in other parts of the world, the mention of Africa evokes images of civil unrest, war, poverty, disease, and mounting social problems. Unfortunately, these images are not just fiction..."⁴³ Post-independence Africa has therefore become synonymous with armed conflict. But this reputation has not come about as a matter of ill luck. To begin with, some of the region's rulers became enmeshed in the Cold War game plan, apparently unable to appreciate that save for the odd evident bluff (such as the Cuban Missile Crisis), the main protagonists never seriously considered engaging each other in direct armed conflict. In the meantime, Africans became victims of supposed ideological wars in countries such as Ethiopia, Mozambique and Angola.⁴⁴ Indeed, in the case of Angola, its warring factions were not only unconcerned about the catastrophic impact of the conflict on their fellow citizens, but also became oblivious to the tragic irony that Russia had, by the 1990s, virtually become part of the G-7, and was in fact negotiating the terms of its association with the NATO alliance at the time.⁴⁵ In a television documentary highlighting the impact of the war on the Angolan people and expressing the hope that the death of the notorious warlord, Jonas Savimbi, would bring them peace, a visibly exasperated veteran ITN reporter, Michael Nicholson, was moved to remark: "...in Africa, things don't quite happen the way they should."⁴⁶ Even where there had been no full-scale armed conflict, the impact of the Cold War was no less catastrophic; in Zaire, Mobutu's role as a supposed bulwark against communism became a license to oppress, brutalize, and impoverish his people in a way that had very few parallels in other parts of the world.⁴⁷

¶ 15         Although the Cold War provided a convenient excuse for some of Africa's wars, it was by no means the only one; African rulers do not seem to need any such excuse. Hence, the governments of Ethiopia and Eritrea have, until recently, been enmeshed in what has been widely described as one of the most senseless wars in history.⁴⁸ Indeed, Africa has even managed to create its own "world war" right in the heart of the continent.⁴⁹ In his report to the UN Security Council, the Secretary-General highlighted the scourge of conflict within the region:

Since 1970, more than 30 wars have been fought in Africa, the vast majority of them intra-State in origin. In 1996 alone, 14 of the 53 countries of Africa were afflicted by armed conflicts, accounting for more than half of all war-related deaths worldwide and resulting in more than 8 million refugees, returnees and displaced persons.⁵⁰

¶ 16         By 2000, over half of African countries were affected by war, according to a paper published jointly by the UK's Department for International Development, the Foreign and Commonwealth Office, and the Ministry of Defence.⁵¹ Armed conflicts have become something that ordinary Africans must learn to live with.

¶ 17         Even as the international community is being duped into believing that a supposed peace accord signed by the warring factions in the Congo would bring an end to the brutalization of the people of the region,⁵² the Ivory Coast, long regarded as a beacon of hope for other African countries, has descended into bloody anarchy, due, in no small measure, to decades of tribal marginalization - a tried and tested means of exercising political power on the continent - and one which has been successfully exploited by the rebel factions in that country.⁵³ At the same time, Charles Taylor's tyranny in Liberia would almost certainly have been replaced by the equally murderous rebel gangs that were poised to overrun the country's capital, but for the intervention of foreign troops.⁵⁴ Nigeria, for the time being, appears to remain united only because its plundering ruling elite has a common interest in its vast oil reserves. Even here, stability cannot be taken for granted, with past rulers excluded from the plunder apparently determined to accentuate and exploit religious and tribal diversity to their own ends;⁵⁵ a situation which will almost certainly result in a repeat of an attempt, between the late 1960s and early 1970s, to exterminate the mainly Igbo tribe in the south east of the country - in retrospect, a precursor to what was to follow over two decades later in Rwanda. There is thus a clear pattern of leadership merely serving the narrow interests of Africa's ruling elites, who, in the meantime, continue to exhibit a contemptuous disregard for the basic needs and interests of ordinary Africans.

¶ 18         Very few commentators would dispute the fact that Mobutu Sese Seko of Zaire had become the very embodiment of "rule by theft" on the continent of Africa before his death. This, to be sure, is not without foundation: Mobutu not only emptied his country's treasury into secret bank accounts abroad, but allowed this insidious ethos to permeate every level of government.⁵⁶ But Mobutu was not alone; neither was his misrule particularly unique on the continent. As early as the immediate post-independence years, Nigerian rulers had begun to set an example that was to become a living testament to mind-boggling profligacy, if not to supreme folly. This was highlighted in the English Court of Appeal case, Trendtex Trading Corporation v Central Bank of Nigeria.⁵⁷ Although its legal significance is not of relevance to this article,⁵⁸ the facts remain a source of great embarrassment to many African students of commercial law (and indeed, of international law): Defence ministry officials had ordered 20 million tons of cement from some 80 different suppliers, at a cost of over US$8 billion (in 1975 prices). Unsurprisingly, over 400 ships converged on Lagos, with more arriving daily, completely paralysing a port that was, in any event, inadequate for such shipments. As explained by Lord Denning MR:

All the berths were occupied. There were 300 to 400 ships outside waiting. More ships were arriving daily...All of those waiting were on demurrage. It was because the government departments had ordered far too much. No doubt Nigeria needed cement. It was a country which was developing fast. They were building houses, factories, barracks, and so forth. All of the work required cement. Previously the average rate of import through all ports had been two million tons of cement a year. Yet early in 1975 the government departments then in charge...had ordered 10 times that quantity...to be delivered over the next 12 months...Even for all commodities together, the discharging capacity at Lagos...did not amount to two million tons a year. Yet here was 10 times that amount arriving - of cement alone - leaving nothing for other vital imports of food and materials.⁵⁹

¶ 19         To be sure, no evidence of corruption was adduced in Trendtex; but neither would that have been necessary in light of the nature of the main question put before the Court of Appeal. In any event, given that an incoming military regime found it necessary to describe the various transactions as "unorthodox, imprudent or inequitable,"⁶⁰ this cannot be ruled out either. Whatever the case, the Trendtex episode was to become a mere prelude to how the country was to be misgoverned, with the Abacha regime taking "Mobutuism" to a different depth, adeptly combining Mobutu's plundering disposition with a degree of viciousness unparalleled in Nigeria's history.⁶¹

¶ 20         Neither are these the only examples of corrupt misrule on the continent. According to a recent report by Human Rights Watch, between 1997 and 2002, the Angolan government had been unable to account for funds totalling about US$4.22 billion. The report adds:

In those same years, total social spending in the country - including...government spending as well as public and private initiatives funded through the United Nations' Consolidated Inter-Agency Appeal - came to $4.27 billion. In effect, the Angolan government has not accounted for an amount roughly equal to the total amount spent on the humanitarian, social, health, and education needs of a population in severe distress.⁶²

¶ 21         Indeed, another report by The Economist reveals that up to 20 Angolans are worth $100m or more. Six of the seven richest of these are government officials; the remaining one only recently retired.⁶³

¶ 22         And, just when these were becoming perhaps the most glaring examples of kleptocratic misrule on the continent, Teodoro Mbasogo of Equatorial Guinea treated viewers of a recent Channel 4 television news programme to an astonishing insight into his approach to governance: It was indeed the case, he admitted, that his country's new found wealth from oil, a "state secret," was kept in his personal bank account in Washington. This, in his words, was because: "I am the one who arranges things in this country because in Africa there are a lot of problems of corruption, the diversion of money. If there is corruption, diversion of funds, then I'm responsible. That's why I'm a hundred per cent sure of all the oil revenue because the one who signs is me."⁶⁴ As it happened, the only beneficiaries of this mindless plunder were shown to be his immediate family, with his son shamelessly exhibiting a collection of expensive cars, sampling fine wines and exquisite watches in Paris. In the meantime, the only hospital in the capital - built by Spain during the colonial days - was overwhelmed with victims of malnutrition, as well as patients suffering from malaria and other diseases. Indeed, as if to illustrate the fact that the level of psychosis that defined the Banda and Bokassa years has not diminished on the continent, the country's State-owned radio is reported to have declared that Mr Mbasogo "can decide to kill without anyone calling him to account and without going to hell because it is God himself, with whom he is in permanent contact, and who gives him this strength."⁶⁵ In virtually every part of the continent, its people have become helpless victims of rulers who have become insensitive to their suffering, and contemptuous of their basic needs.

¶ 23         An impoverished Nigerian tailor, Muhammad Umaru, reportedly said: "When we were in the military regime, we didn't get anything from the government, but we had peace. Now we are in a democracy, we don't get anything from the government, and we don't have peace."⁶⁶ Regrettably, such views are often ignored in academic literature on Africa. Instead, there appears to be a determination to highlight a supposed new dawn of democracy in the region. A collaborative paper published by the World Bank puts it thus: "Most...African governments conceded the principle of democracy in the first half of the 1990s. By 1999 nearly all countries had held multiparty elections..."⁶⁷ An IMF paper also highlights how supposed political liberalization and participatory democracy are complementing economic reforms in the region.⁶⁸

¶ 24         The reality, however, is that the so-called new breed of leaders are in no way different from their immediate post-independence contemporaries, and are in many ways worse. Indeed, the apparent manifestation of democratic governance has so far proved to be a cynical façade - a smokescreen for the preservation of the past. Even Thabo Mbeki's much-vaunted quest for an "African renaissance," for example, appears to be rooted in sheer escapism and astonishing obtuseness: a feckless attempt to challenge the universally accepted scientific fact - that AIDS is caused by the HIV virus - rather than in taking steps to reverse the pandemic itself.⁶⁹

¶ 25         In Nigeria, this supposed new democratic, post-Abacha era began with legislators awarding themselves up to 3.5 million naira in furniture allowances (about $35,500, in a country where the average monthly civil service salary is only about $200), rather than taking steps to alleviate the suffering of ordinary Nigerians.⁷⁰ The same country's supposedly democratically elected leader, Obasanjo, has not only proved himself a consummate human rights violator, but has in fact sought to justify the massacre of unarmed civilians by his military forces.⁷¹ Another, report highlights systematic and widespread violations of civil and political rights, particularly freedom of expression, by the country's security agencies acting with absolute impunity.⁷² In a decision remarkably reminiscent of Felix Houphet Boigny's squandering of his nation's resources on a multi-million dollar basilica when the personal incomes of ordinary Ivorians were deteriorating by as much as 50 percent,⁷³ Obasanjo evidently regards the installation of a satellite system in space to be a more urgent governmental function than improving the healthcare and educational needs of his fellow citizens.⁷⁴ The same ruler, for good measure, is currently negotiating the purchase of missile and other defence technologies from North Korea.⁷⁵ On his part, Paul Biya of Cameroon, in 1999, had a personal airport built near his presidential retreat of Mvomeka.⁷⁶ As if not to be outdone, the King of Swaziland has elected to squander the equivalent of his country's entire health budget of $45 million on the purchase of a private jet, at a time when his people are either dying of starvation, or of HIV/AIDS, if not both.⁷⁷

¶ 26         The above are by no means the exception. In 1985, Mengistu and his obnoxious Dergue regime in Ethiopia treated the world to what was most probably the worst post-Biblical famine it had ever witnessed - a tragedy which prompted the Live Aid campaign. Roughly two decades afterwards, the people of Ethiopia, this time under a supposed democratic dispensation, experienced a repeat of this tragedy, due in no small measure to a senseless war with neighbouring Eritrea.⁷⁸ Indeed, the UN Secretary-General was so infuriated by the conduct of both nations that he cast his diplomatic discretion aside during a newspaper interview and lamented:

The quality of the leaders, the misery they have brought to their people and my inability to work with them to turn the situation around are very depressing...In many countries the wrong kind have made it to leadership. They seek power for the sake of power and for their own aggrandisement rather than having a real understanding of the need to use power to improve their countries.⁷⁹

¶ 27         In Liberia, a supposed democratic mandate given to Charles Taylor after his brutal war which led to the ousting and the eventual murder of his equally vicious predecessor, Master Sergeant "General" "Doctor" Samuel Doe, became a licence to subject his people to further misery, as he set about plundering his country's irreplaceable rainforest for personal gains.⁸⁰ Even Nyerere's successors in Tanzania, not long ago, elected to waste the country's meagre resources on the purchase of a sophisticated military air defence system, even though fees have been introduced in schools.⁸¹

¶ 28         It is therefore understandable that a recent Human Rights Watch report devoted a section entitled: "Elections, But Not Necessarily Democracy" to highlighting various human rights violations on the continent, including rigged elections, the suppression of press freedom, and torture and political killings.⁸² The hollowness of political reforms in Africa has also been illustrated by the newsmagazine The Economist, which declared: "A new sort of African leader is trying to break the addiction to foreign aid, and to the idea that Africa's woes can be blamed forever on the legacy of colonialism...Little noticed by the rest of the world, much of sub-Saharan Africa is in the midst of an upturn."⁸³ Three years later, the same publication highlighted the reality of African leadership in a cover story titled "Hopeless Africa."⁸⁴ One keen observer of the region, commenting on freedom of expression, asserted:

The veneer of democratization that accompanied the achievement of self-government was rapidly stripped away by leaders anxious to preserve their version of national unity, and/or by military elites who shot their way into power. Multi-party systems were consolidated into single-party systems, then into one-man systems. With the 'second independence' of the 1990s, in which open political competition returned to many countries, freedom of expression seemed to obtain a new lease on life. In my judgment, however, the overall climate remains inhospitable.⁸⁵

¶ 29         For ordinary Africans therefore, a supposed new era of democracy on the continent has simply been a repeat of the transition from colonial subjugation to one of economic misery and tyranny; the very notion of democracy itself yet another instrument in the arsenals of the region's merciless despots.

IV.    A PROFUSION OF SPECIOUS THEORIES

¶ 30         One of the most tragic realities of post-colonial leadership in much of Africa is that the chaos it has created easily lends itself to all manner of theories. One measure of this disorder is that almost every one of these theories seems to carry a certain degree of validity - except when subjected to even the most cursory examination.

¶ 31         One common theory is that Africa's inability to develop is a function of its history and culture. This position has been most forcefully articulated by The Economist: "[M]ost of the continent's shortcomings owe less to acts of God than to acts of man...brutality, despotism and corruption exist everywhere - but African societies, for reasons buried in their culture, seem especially susceptible to them" [emphasis added].⁸⁶ And it concluded: "Africa's biggest problems...were created by African society and history."⁸⁷ A major World Bank study, while acknowledging that the "roots of state failure" in the region are "many and complex," nevertheless concludes: "Chief among them has been a continuing struggle between traditional forms of governance and social organization (often based on tribes, lineages, and language and kinship groups) and modern forms of government."⁸⁸

¶ 32         Yet proponents of this theory have failed to identify this supposedly homogenous cultural pattern amongst the people of the region, which is inherently inimical to the realization of human rights. Indeed, although there is a definite, discernible "culture" of misrule at the level of leadership, Africa is an amalgamation of various "cultures" - a fact acknowledged thus by another human rights advocate from the region: "... [T]he diversity of African peoples and their societies defy easy categorization or generalization."⁸⁹ In any event, there are numerous historical accounts of practices in pre-colonial Africa that are in consonance with established human rights norms. For example, according to another African commentator, the virtues of participatory democracy and freedom of expression were well entrenched in the African social order before the arrival of the Europeans; these being particularly evident at village meetings where views were freely expressed and ideas exchanged, in societies where the concepts of justice, order, and fairness were well developed.⁹⁰ Indeed, although the practice of slavery is hardly reconcilable with universally human rights norms, a renowned African historian reveals that even those regarded as slaves could own property, elect and send representatives to the King's court, and request an audience with him - hence, a certain Jubo Jubogha (renamed Jaja by the Europeans), who was born in 1821 and sold as a slave to a Bonny trader in 1833 in the Niger delta area of present-day Nigeria, was later elected head of the Anna Pepple House, and succeeded the King in 1863.⁹¹

¶ 33         Another African commentator, Kofi Busia, describes a system of checks and balances - an indispensable element to modern democratic governance, and thus, to the realization of human rights - in his native, pre-colonial Ghanaian society: Although the Akan chief is renowned for wielding enormous powers, this is only theoretical; the chief rarely makes policy. In the wider traditional setting, the chiefs are never above the customary norms and taboos that govern everyone else. To check their power, they are surrounded by various bodies and institutions. Before taking office, the chief is often required to take an oath. In the case of the Krontihene of the Ashanti, part of the formal admonition is: "When we give you advice, listen to it. We do not want you to abuse us; we do not want you to regard us as fools; we do not want autocratic ways; we do not want bullying; we do not like beating...take the stool."⁹² Further examples have been proffered, such as the existence of freedom of movement and of association.⁹³ The right to education, it is explained, was a collective responsibility, although the primary emphasis was on the virtues of good citizenship.⁹⁴

¶ 34         Whether these practices are reflective of the general state of affairs in pre-colonial Africa is of course a matter of conjecture, not least because much of Africa's history is rooted in the oral tradition, with its inherent methodological problem of unreliability. Indeed, for every such example of adherence to human rights, it is possible to cite others that point to the contrary: The traditional practices of female genital mutilation⁹⁵ and wife-beating⁹⁶ are hardly compatible with universally agreed human rights standards. Neither is the usual emphasis on collectivism (at the expense of individualism)⁹⁷ unproblematic when set against the language of the UDHR.⁹⁸ Nevertheless, to suggest that certain traditional practices are responsible for Africa's economic backwardness represents a misleading and dangerous extrapolation - and one that has assisted in no small measure in diverting critical attention from the real cause of the region's dismal economic situation.

¶ 35         To be sure, many African rulers themselves have often sought to justify their human rights violations by appealing to a perverse notion of what human rights advocates often describe as "cultural relativism" - a theory which holds that because societies are products of their peculiar historical and cultural development, their conceptions of human rights must necessarily be allowed to reflect such experiences. In effect, this theory rejects the universality of human rights,⁹⁹ by invoking certain alluring (if ill-defined) notions such as "African culture," "African values," or "African civilization." A good example of this tendency is evident in the continent's human rights instrument, the African Charter of Human and Peoples' Rights - itself an absurdity in human rights terms, given the peculiar circumstances of its adoption¹⁰⁰ - the preamble of which affirms "the virtues...and the values of African civilization."¹⁰¹ This, it is safe to assume, reflected a speech by the then Senegalese leader Leopold Senghor, in which he urged the Charter's drafters to "keep constantly in mind our values of civilization and the real needs of Africa."¹⁰² Indeed, if the African Charter represents the legal blueprint of this mindset, the earlier cited Channel 4 television news report on Equatorial Guinea highlights its real-life manifestation: In spite of being the world's fastest growing economy due to its new-found oil wealth, its people continue to languish in economic misery.¹⁰³ Challenged by the intrepid Lindsey Hilsum about this, its ruler retorted: "I can assure you that there's no poverty in Guinea...[t]here's no deprivation either...You have to understand the level we're at in Guinea. The first problem is the people's cultural level. The people are used to living in a very different way, which you people think is poverty. In Guinea what we have are shortages." ¹⁰⁴ An equally absurd explanation was proffered in response to a question on the lack of democratic accountability: "I think Equatorial Guinea's democracy is the most open, the most transparent. We are following a kind of democracy which fits the style and customs of Equatorial Guinea."¹⁰⁵

¶ 36         Mr Mbasogo, to be sure, is not a trailblazer amongst his peers. As noted by Jack Donnelly, his predecessor and uncle, widely acknowledged as one of Africa's most vicious tyrants - and who was murdered by Mbasogo in a coup that brought him to power - called himself "Grand Master of Popular Education, Science, and Traditional Culture."¹⁰⁶ Indeed, as Donnelly points out, similar arguments have been proffered by other African despots. For example, Hastings Banda of Malawi successfully stifled opposition to his rule by subjecting his victims to a very un-African judicial process called "traditional courts," in which the accused had no right to legal representation, and from which they could appeal only to him in person.¹⁰⁷ Mobutu, for his part, revived the practice of Salongo - a kind corvee labour inherited from his country's colonial past.¹⁰⁸ Indeed, it is safe to assert that the usual mantra, "African solutions to African problems," is an offshoot of this perverse mindset. From the vociferous defence of Mugabe's conduct by his fellow rulers in spite of the misery he has inflicted upon the Zimbabwean people,¹⁰⁹ to the shielding of Charles Taylor from international justice by Nigeria's Obasanjo, this appeal to cultural relativism has exposed ordinary Africans to a life of unparalleled misery. Little wonder, therefore, that as will be illustrated in Part V, responses by the international community to the continent's tragedies are often based on undisguised cynicism: Africa, it appears, does not deserve the basic rights which the rest of the world is beginning to take for granted because its values and expectations are peculiarly different.

¶ 37         Another thesis attributes Africa's wars and economic problems to the outcome of the Congress of Berlin and the consequent partitioning of the continent in 1885 along what is widely believed to be arbitrary boundaries. The resultant dislocation of traditional arrangements, it is argued, has been a source of conflict in much of the continent.¹¹⁰ Even the usually persuasive Basil Davidson has become one of the main proponents of this viewpoint:

[I]n 1885, half a dozen powerful European nations...decided to share out Africa...but not, of course, without going to war against Africans...Africa was being divided up into many 'colonies'...ruled directly and dictatorially by European governments, along frontiers fixed between the European powers...A great and deep disaster for the peoples of Africa, the colonial period deprived them not only of their political freedom and the right to think for themselves, thus bringing to a stop the onward flow of Africa's own history, but also, in large measure, undermining their sense of confidence and self-respect.¹¹¹

¶ 38         Yet, it was Nelson Mandela who once asserted: "Africa is beyond bemoaning the past for its problems. The task of undoing that past is ours...we must take responsibility for our own destiny, that we will uplift ourselves only by our own efforts in partnership with those who wish us well."¹¹²

¶ 39         It is also hard to ignore the fact that, as pointed out by the former Africa specialist of The Economist Richard Dowden, none of the factions in the region's wars is calling for changes to boundaries drawn by the colonial powers; in fact, many, if not all, of the wars have been instigated by individuals seeking access to the trappings of power at the centre.¹¹³ In any event, it is the case that colonialism did also forge what might be described as an artificial union between the native Malays, the Chinese, and the Indians in Malaysia, a country comparable in many respects with Ghana, but which has managed to outperform the entire region of SSA (including South Africa) economically.¹¹⁴ Indeed, it is ironic that the most heterogeneous country in SSA itself (namely Mauritius), with its medley of racial and religious groups - including Hindus, Muslims, Creoles, native Africans, and Europeans - has achieved a level of development that has eluded even the most homogenous countries in the region.¹¹⁵ Moreover, even if the redrawing of boundaries were the solution to Africa's problems, its proponents might wish to explain why it was unable to prevent what was, even by Africa's standards, a most senseless war between Ethiopia and Eritrea soon after the latter's secession following a 1993 referendum supported by both sides. The inescapable fact is that a tragic - though by no means unique¹¹⁶ - event in the continent's history has become yet another excuse for commentators who are unwilling to accept that African rulers owe certain basic responsibilities to their long-suffering people.

¶ 40         The dependency thesis, widely attributed to the late Stephen Hymer, posits that international economic relations are premised on an inherent power imbalance between rich and poor countries, mediated by the modern transnational corporation (TNC), whose organizational structures - e.g., the global distribution of its decision-making centres - and policies inexorably result in "specialization by nationality."¹¹⁷ Poor countries, it is argued, thus find themselves in a position of "structural subordination" vis-a-vis the industrialized ones.¹¹⁸ Indeed, much of this thesis is evident in the writings of political leaders such as the late Nyerere of Tanzania, who mused: "First, where in our lands are those citizens who have sufficient capital to establish modern industries; and second, how would our infant industries fight other capitalist enterprises?"¹¹⁹ Of late, this argument has been revived by no less than Fantu Cheru, who, while acknowledging the impact of wrong policy choices by SSA governments, is equally scathing about what he sees as the rules established by Western European powers, by which the region would participate in the global economy. Put simply, Africa was to produce raw materials and agricultural goods for Western industries and consumers: coffee and tropical fruits by Kenya, cotton by Sudan, bananas and pineapple by the Ivory Coast, cocoa by Ghana, and groundnut by Senegal.¹²⁰ The implication, of course, is that Africa remains a casualty of these "rules."

¶ 41         There is little doubt that this theory had some validity in the immediate post-independence years, not least because colonial ties were still strong at the time, with many developing countries retaining their roles as sources of raw materials for finished products in Western markets. With the passage of time, however, the theory seems increasingly at odds with the facts. For example, its proponents would have much difficulty in explaining why it is that Ethiopia and Liberia, which have never been colonized in the sense described in Part III - and therefore presumably have never been subject to such "rules" - have become two of the poorest and most chaotic countries in the region. Moreover, it remains unclear why such "rules" should apply more rigidly to Africa than to any other region of the world. Indeed, even if it were the case that certain unknown factors or forces have conspired to keep Africa in such a disadvantageous position, the emergence of countries in "developing Asia" from such apparent colonial designs - not to mention Mauritius, itself a SSA country - makes it possible to argue that such "rules" can in fact be "broken" with imaginative leadership.

¶ 42         Of all the theories offered to explain Africa's inability to develop, this one seems the most persuasive. A variant of the dependency thesis, and an article of faith amongst commentators on the broad political left, it holds that Africa is a casualty of an unfair, ideologically-driven global economic order whose interests are inherently detrimental to those of poor countries generally.¹²¹ Indeed, it has become the fuel that propels the engines of the anti-globalization movement, and is often articulated in the contexts of the region's crippling debt burden and its inability to trade.¹²²

¶ 43         To be sure, the perils of globalization have been acknowledged by even its most ardent proponents.¹²³ Indeed, the Heavily Indebted Poor Countries initiative (HIPC), if nothing else, represents an implicit admission of the inappropriateness of the structural adjustment policies (SAPs) imposed by the World Bank and the International Monetary Fund on the region following the debt crisis.¹²⁴ Yet, as Frances Stewart points out, these policies did not simply emerge from the blue, to be imposed on economies that were otherwise healthy.¹²⁵ Flawed though they were, SAPs were an attempt to rescue the region from a leadership unwilling to see beyond its own selfish interests. It is, after all, the case that to this date, no commentator can point to any single poverty-alleviating project in the region that is attributable to the loans that resulted in the debt crisis, although at least some of the proceeds have almost certainly financed the most egregious human rights violations by some governments, such as Mengistu's in Ethiopia and Mobutu's in Zaire - not to mention the apartheid regime in South Africa. Nor can one ignore the fact that the most vociferous advocates of trade liberalization preside over the most protectionist economies, particularly in the areas in which Africa might be said to have what classical economists call comparative advantage, namely primary produce.¹²⁶

¶ 44         Yet too much is often read into this state of affairs, at least insofar as commentators often ignore the fact that the United States and the European Union (amongst the most powerful trading countries) have put in place preferential regimes aimed almost exclusively at SSA.¹²⁷ These regimes, to be sure, are not beyond valid criticism. Eligibility for the United States' African Growth and Opportunity Act scheme is based, inter alia, on its beneficiaries' willingness to adopt wide-ranging neo-liberal reforms that are not dissimilar to the much-discredited SAPs;¹²⁸ while the EU's Everything But Arms initiative currently excludes certain "sensitive" products, namely, rice, sugar and fresh bananas.¹²⁹ But then, to expect a purely altruistic trading regime, or indeed, the morally impeccable practice of "fair trade," would amount to a dangerous misunderstanding of the very essence of international economic relations: the preservation of national self-interest, however defined. In any event, it is also important to note that from all indications, even these relatively preferential regimes have not been utilized to any significant degree¹³⁰ - an unsurprising state of affairs given Africa's notorious, near-total lack of institutional and infrastructural capacity,¹³¹ without which no meaningful or sustainable economic activity is possible. Moreover, the very fact that much of "developing Asia," once in the same state of colonialism and underdevelopment as Africa, is emerging as an economic powerhouse in its own right, globalization notwithstanding,¹³² illustrates the simple fact that Africa must not wait until self-interest is completely eliminated from international economic relations before its rulers begin to adopt the very elementary measures necessary for the emancipation of their people from economic misery. ¹³³

¶ 45         Unsurprisingly, African rulers have accepted no responsibility whatsoever for the continent's depressing state. For example, the so-called Lagos Plan of Action - itself a 1980s version of the much-heralded NEPAD¹³⁴ - blamed Africa's economic woes on "[t]he effect of unfulfilled promises of global development strategies..."¹³⁵ It adds, "...despite all efforts made by its leaders, [Africa] remains the least developed continent...exploitation has been carried out through neo-colonial external forces..."¹³⁶ This view was later echoed by Nigeria's ambassador to Washington, who reportedly stated: "Certainly, Nigeria is not free from worldwide economic and social malaise, largely caused by external factors, like unfavourable trade terms and fluctuating commodity prices."¹³⁷ And this, in spite of the fact that economic mismanagement and endemic corruption has meant the conscious neglect of the country's agricultural sector by each of its post-independence regimes in favour of oil, which, as of 2002, accounted for over 95 percent of the country's export receipts.¹³⁸ This escapist mindset has become the basis for Africa's interaction with the rest of the world, as evidenced during the recent collapse of world trade talks in Mexico, where its delegates were among the most vociferous in blaming protectionism for their countries' inability to trade,¹³⁹ even though as already noted, very few of the region's countries are in a position to utilize the current preferential regimes, particularly those offered by the EU and the United States.

V.    AFRICA'S MISERY: SOME DISTURBING INSIGHTS

¶ 46         Of all the explanations often proffered for Africa's state of chronic underdevelopment, some of the most insightful and persuasive are those offered (separately) by George Ayittey¹⁴⁰ and Nicolas van de Walle.¹⁴¹ For Ayittey, the people of the continent have been betrayed by their rulers - an elitist and "arrogant bunch of oppressive kleptocrats" who, in much of the region, are "worse than the European colonialists." Africa, he notes, "has been hijacked by gangsters, crooks, and scoundrels," and has become a continent where government officials do not serve the people, and where "anyone with an official designation can pillage at will."¹⁴² The infamous excesses of such vicious tyrants as Mobutu and Bokassa, he suggests, are mere manifestations of a wider problem that has bedevilled the continent since independence.¹⁴³ One of these, he notes, is the systematic undermining of State institutions by the region's rulers as a way of strengthening their own grip on power. Thus, although every country in the region has a judicial system, their primary purpose is to serve the interests of the elite, while violating the basic rights of the poor.¹⁴⁴

¶ 47         For van de Walle, Africa's state of "permanent crisis" stems simply from "neopatrimonialism," an essentially client list approach to governance which relies on a system of "favors" and "privileged access to public resources;" an inherently corrupt system in which the traditional divide between the public and private spheres has become blurred, and which forms the basis of policy choices that ultimately result in economic chaos.¹⁴⁵ This, he argues, has in turn created an "aid-dependency syndrome," as donor agencies attempt to fill the gap, often assuming the roles of government in many respects, with the result that "[b]y the early 1990s, Africa's relationship with the international economy was almost entirely mediated by public aid flows."¹⁴⁶

¶ 48         What makes the above two views so instructive is the fact that although there is no evidence of collaboration between the authors, they both point to a single factor: the catastrophic failure of leadership.¹⁴⁷ Both also validate an earlier study by the World Bank, which reached a similar conclusion: "It is in sub-Saharan Africa that the deterioration in the state's effectiveness has been most severe - the result of eroding civil service wages, heavy dependence on aid, and patronage politics."¹⁴⁸ The study also notes that the majority now have lower "state capability" than they did at independence, adding, "[a]n institutional vacuum of significant proportions has emerged in many parts of sub-Saharan Africa, leading to increased crime and an absence of security, affecting investment and growth."¹⁴⁹

¶ 49         Elitist exploitation is not a peculiarly African problem; it could, after all, be argued that every society in the world is ruled by some kind of elitist clique, at least insofar as it pursues an agenda that is not primarily or exclusively in the interest of the people it governs. For example, the Bush Administration in the United States, like many of its predecessors, is believed to be deeply beholden to certain corporate interests through an inherently corrupt party funding system which makes a nonsense of America's claim of being a truly representative democracy.¹⁵⁰ Neither are dictatorial regimes an African invention. As highlighted by Wade Mansell, dictatorships are not respecters of geography.¹⁵¹ Indeed, almost without exception, the entire Arab world is ruled by some of the most corrupt regimes in history. Nor is brutality an exclusively African preoccupation. For every Idi Amin in Africa, there has been a Pol Pot in Asia, or a Hitler in Europe. Moreover, kleptocratic misrule is hardly an exclusively African phenomenon. For every Mobutu or Abacha, the world has witnessed the Marcoses, a Samoza, or the Ceausescus - just a few examples of rulers who regarded their countries' wealth as their own personal assets. Indeed, a recent Channel 4 television programme revealed that Edward Shevardnadze's Georgia was ridden with graft, with aid funds being appropriated by government officials and drug enforcement agents dealing in the very substances they were supposed to be confiscating.¹⁵² Moreover, a recent and rare first-hand account of life in North Korea under the macabre tyranny of Kim Jong Il by a former official of the aid organization, World Vision, reveals that very few African rulers can match this regime in terms of its ability, not just to deny basic human rights to its people, but to also control their very thoughts and daily lives through a bizarre and thoroughly dehumanizing socio-political experiment called "Juche".¹⁵³ Indeed, a recent BBC documentary, "This World", also revealed, among other violations, the starvation of its citizens by the regime, as well as credible accounts of routine testing of chemical and biological agents on the inmates at its secret Prison Camp 22, the victims including women, and children.¹⁵⁴ Even poverty itself is evidently not a uniquely African experience, at least insofar as it exists, albeit in relative terms, even in the richest societies of the world.

¶ 50         What makes the African experience unique, however, is a combination of internal and external factors. Internally, there is amongst African rulers themselves a definite, cult-like determination to preserve the status quo, complete with the ritual of annual OAU (now AU) "summits," the purposes of which are only understood by "the brotherhood."¹⁵⁵ Indeed, the very idea of the AU, with its infinite list of impressive aims - such as the establishment of the "Pan-African Parliament", the "Court of Justice" and certain "Financial Institutions" - made up of the African Central Bank, the African Monetary Fund and the African Investment Bank¹⁵⁶ - not to mention some twenty nine other "Treaties, Conventions, Protocols and Charters", is based, like the tenets of secret cults, on an a belief in scientific impossibilities. It is, after all, logically impossible to create such supranational institutions from the economic and political shambles that currently constitute the various member-states of the "Union." Political gimmickry may be an intrinsic feature of international relations (and in this respect, the AU may not be different from the Arab League) but nowhere else in the world has it been turned, effectively, into a development strategy.

¶ 51         The other level at which this cult-like solidarity manifests itself is in regard to political - and by extension, economic - accountability, where the notion of an "African solution" trumps every other consideration. A reaffirmation of the insidious notion of cultural relativism at its worst, this mindset has little room for victims of human rights violations.

¶ 52         Two examples illustrate this point. First, in spite of the fact that Mugabe's conduct has violated every known aspect of African culture, not to mention internationally recognized human rights norms, no African ruler has been willing to condemn him to date. On the contrary, their conduct at recent Commonwealth summits simply confirms their determination to preserve "the brotherhood" at the expense of everything else.¹⁵⁷ Indeed, even Nelson Mandela's own successor, Thabo Mbeki, has not concealed his anger at the international community for criticizing Mugabe. He is reported to have stated recently: "The land question has disappeared from the global discourse about Zimbabwe, except...to highlight the plight of former white landowners."¹⁵⁸ So determined has Mbeki been to strengthen (and broaden) "the brotherhood" that he recently travelled to Haiti, where he reportedly spent $1.5million, effectively celebrating the kleptocratic despotism of the now exiled Jean-Bertrand Aristide.¹⁵⁹ And from all indications, he was even prepared to extend military support to that regime.¹⁶⁰ The attitude of the AU could be contrasted with that of the Association of South East Asian (ASEAN) countries, which, although not composed of quintessential democrats, has demonstrated its willingness to emancipate their citizen from poverty, as noted earlier.¹⁶¹

¶ 53         The evident contempt for human rights by African rulers has in turn prompted near-palpable cynicism from some Western leaders, who appear to regard even the most atrocious amongst the former as a "partner" in the development of the continent.¹⁶² This was much in evidence at a conference organized by President Chirac of France on the region titled "Africa and France, Together in Their New Partnership," to which every ruler on the continent - except leaderless Somalia's - was invited. Even Mugabe was also invited, in spite of a supposed EU-wide travel ban.¹⁶³ In any event, African rulers had reportedly threatened to boycott the conference if Mugabe was excluded.¹⁶⁴ Thus, a coincidence of selfish interests between the French government and African despots took precedence over every other consideration, including the need to isolate rulers who evidently constitute an impediment to the realization of the basic needs of the people of the region.

¶ 54         To be sure, the French government does not operate in isolation. British Premier Tony Blair also appears determined to safeguard this "partnership" regardless of the outcome: In a speech delivered with characteristic messianic zeal, he told his Labour party activists in October of 2001 that Africa was "a scar on the conscience of the world" which needed to be "healed." "A partnership for Africa...based around the New African Initiative" he added, "is there to be done if we find the will."¹⁶⁵ What has become of that "partnership" three years afterwards remains to be explained. In the meantime, the Prime Minister has set up a new Commission for Africa, whose role "will be a comprehensive assessment of the situation in Africa and policies towards Africa."¹⁶⁶Indeed, the word "partnership" was more recently echoed, with equal passion, by his former International Development Secretary, Baroness Amos (currently leader of the House of Lords) in a radio debate, in response to a suggestion that Africa is, more than anything else, a casualty of bad government.¹⁶⁷ Nor are these Western leaders alone in this cynical enterprise. A visit to the websites of various multilateral agencies (including the UN's) reveals an apparently obligatory obsession with the idea of a "partnership" with these rulers.¹⁶⁸ The neo-conservative American think-tank, the Heritage Foundation, may not have much to offer in terms of solutions to Africa's problems (except perhaps for the much discredited SAPs or its variants); but a description, by one of its commentators, of the region as "a playground for spoilt despots wreaking havoc on their fiefdoms" could not be more appropriate.¹⁶⁹

¶ 55         In criticising the nature of the relationship between international actors and African rulers, it is necessary to acknowledge that these same actors are also actively engaged with obnoxious regimes the world over. Successive US Administrations, for example, have been unflinching allies of the decadent and repressive Saudi dynasty for many decades, as have their British counterparts. The United Nations, for its part, has maintained a presence in various countries with questionable human rights regimes - and appropriately so, given its human rights mandate.¹⁷⁰ Thus, on the surface, it could be argued that engagement by the international community with African despots is not unique. However, this would ignore the very nature of these relationships: As well as being premised on cynicism, they are also based on what might be called deliberate ignorance. This almost certainly stems from the fact that, in general, very few of these actors ever attempt to understand the political, sociological, and indeed the economic environments in which they operate. So much, after all, has been acknowledged by the World Bank's former Chief Economist who has offered an insight into the astonishingly cavalier and routine manner in which its sister organization, the IMF, conducts its business.¹⁷¹ This, moreover, is the theme of Graham Hancock's widely-cited book, Lords of Poverty, which highlights how virtually no consideration is given by aid donors to its supposed beneficiaries.¹⁷² It follows that in the context of SSA, their policies are inexorably premised upon a misreading of the relationship between the victims of poverty and their ruling elites. The selfish interests of Africa's ruling elites, it appears, are the same as those of the region's longsuffering people. How else can one explain the fact that African rulers continue to receive foreign aid of every description (so much so that the region has become the most aid-dependent in the world),¹⁷³ without such inflows being strictly conditional upon the extent to which they are channelled towards poverty alleviation?¹⁷⁴

¶ 56         Ignorance of Africa on the part of international actors is also influenced by a debilitating kind of political correctness - a patronizing of interests fuelled by a desire not to be seen to be critical of rulers who are invariably considered to be victims of colonial or some other injustice. Again, this attitude does not recognize the evident distinction between the region's rulers and their selfish interests, and the real victims of economic misery. As pointed out by Ayittey, to do so would be seen as "blaming the victim."¹⁷⁵ The upshot of this attitude is that whereas the odious regime in Saudi Arabia, for example, is condemned for what it is, and Kim Jong Il's North Korea a subject of universal derision or opprobrium, African dictatorships are seen as "partners." It also explains the fact that although many commentators are willing to blame Kim Jong Il, for example, for his people's suffering, criticisms of African rulers are often invariably tempered with references to so-called exogenous factors.

¶ 57         Moreover, this uncritical engagement has spawned what might be called an "initiatives industry," with international actors seemingly determined to match, and in most cases, surpass, every escapist antic embarked upon by African rulers.¹⁷⁶ It comes as no surprise, therefore, that Africa has become the most aid-dependent region in the world, while the basic needs of its people have remained at best largely ignored by both sides in this cynical enterprise, as efforts are intensified towards preserving the "partnership." This is one area in which there needs to be radical change if ordinary Africans are ever to begin to enjoy the basic rights proclaimed under the ICESCR.

¶ 58         Much, of course, has been written on SSA, and from various disciplinary perspectives. Regrettably, this vast literature mainly articulates the region's problems in terms of either the consequences of an unfair, neo-liberal global trading regime or of poor policy choices - usually a euphemism for the non-adoption of exclusively neo-liberal economic policies.¹⁷⁷ Even within the context of human rights advocacy, violations of civil and political rights have traditionally been given priority over violations of economic rights, although it is necessary to acknowledge that this appears to be changing.¹⁷⁸ This means that the benefits accruing from violations of economic rights to African rulers have received very little or no attention.¹⁷⁹

¶ 59         This, however, is not difficult to understand: the traditional (if fictional) separation of the two categories of human rights aside, it is easier to explain why the violation of civil and political rights might serve a despot's interests - primarily, his determination to remain in power - than it is to comprehend how his violation of economic rights might serve the same purpose. A clampdown on freedom of expression,¹⁸⁰ for example, is a tried and tested means of stifling debate - and thus of popular agitation for change - just as the denial of participatory rights¹⁸¹ by a one-party regime eliminates effective political opposition.

¶ 60         On the contrary, it could be argued that because the denial of the rights to food or healthcare might engender a sense of marginalization and provoke a popular revolution, this cannot serve the same purpose as denials of civil and political rights. The recent uprising against Jean-Bertrand Aristide in Haiti, and his ignominious flight from the country might indeed be cited as a case in point. But then, in the case of Haiti, the impact of pressure from the American and French governments, above anything else, cannot be discounted as the deciding factor. Indeed, it is reported that he was "bundled on to a plane" by US troops.¹⁸² With no such geographical proximity (and hence, an immediate threat from refugees) to the United States, SSA remains in an entirely different position. At any rate, a combination of illiteracy, poverty, hunger, homelessness and disease has rendered its people simply incapable of demanding political and economic change. African rulers have therefore come to appreciate their utility - hence, their preference for escapist gimmickry, such as NEPAD or the hopelessly grandiose aims of the AU, as a substitute for simple, practical steps aimed at poverty alleviation. Economic emancipation therefore represents as much a threat to despotism as freedom of expression, or the right to participate in "genuine periodic elections" as envisaged under the ICCPR.¹⁸³ It thus becomes possible to assert that in much of Africa, poverty is not simply an unfortunate state of affairs, nor, as is often suggested, a consequence of globalization or other factors; it is, on the contrary, an effective means of mass disempowerment by rulers whose only concern is the exercise of power without the attendant responsibilities.¹⁸⁴ The same is true of Africa's endless wars, which, aside from the direct material benefits that often flow from them,¹⁸⁵ remove any vestiges of accountability, and make the ruler's position unassailable. They also make it possible to embark on a "rights violating spree," including the commission of such horrific crimes as rape, mutilations, and the conscription of child soldiers; thereby making it unnecessary to build hospitals or schools, not to mention the basic State institutions and infrastructure, without which no governmental functions can take place.

¶ 61         Current developments in Somalia offer what is arguably the best illustration of how leadership has been the impediment to Africa's economic emancipation. Somalia has not only become a failed State in every imaginable respect, but is almost certainly the only "mobocracy" in the world. But Somalia's collapse did not happen by accident. Since becoming independent in 1960, it was plagued by warlordism.¹⁸⁶ The post-independence regime was overthrown in 1969 by a man called Siad Barre, under whom the country became a pawn in the Cold War rivalry. In the meantime, expansionist ambitions on the part of Barre saw the country at war with neighbouring Ethiopia in an attempt to create a "Greater Somaliland," although the massive aid - first from the Soviet Union, later from the United States, and then from the Italian Socialists - it had received never reached its people. The economy, needless to add, was already in ruins by 1980 when the IMF intervened.¹⁸⁷ In the meantime, every sign of protest was met with brutal repression. According to Human Rights Watch, the Barre regime "unleashed a reign of terror against [civilians of the Isaaq clan] killing 50,000 to 60,000 between May 1988 and January 1990."¹⁸⁸ The collapse of the country in the 1990s was therefore a near-certainty.

¶ 62         What makes Somalia particularly instructive in relation to the African tragedy is the fact that it is is, astonishingly, now enjoying a degree of stability that even its previous rulers were unable - or unwilling - to bring about. In what must be one of the most perverse political and economic developments in history, the prevalent anarchy has even spawned a thriving multi-purpose company called al-Barakaat, which had once grown to became the largest employer in the country, its interests including banking, postal services and telecommunications, with a shareholding of 600.¹⁸⁹ Of late, other developments have been noted in areas such as livestock production, road building, water and electricity. Media houses have in fact also sprung up.¹⁹⁰ And although clan warfare and mob rule remain central features of daily life, a BBC source notes that "[t]he country has one of the most dynamic economies in the East African region and is effectively an economy without a state."¹⁹¹ In one sense, it is possible to dismiss these developments simply as a bizarre fluke, the dynamics of which cannot yet be known, not least because this would be impossible in a state of literal anarchy. If and when normality ensues, future research would almost certainly offer a more revealing insight. This, however, would ignore one important point: that given the right kind of leadership (and one capable of giving vent to the ingenuity already demonstrated by the Somali people), their level of economic development can only be imagined. Indeed, the very fact that so much has emerged from this tragic chaos serves as an eternal indictment against certain so-called governments on the continent of Africa.

VI.    A Human Rights Solution?

¶ 63         Assuming, therefore, that leadership constitutes the obstacle to the realization of human rights in Africa, this invariably raises questions regarding what measures might be appropriate as a way of emancipating its longsuffering people. In proposing a "human rights solution," it is recognized that law is merely one possible means of effecting the desired change. It is, after all, the case that concerted political pressure, for example, might prove more effective: As noted in Part V, it was political pressure from the United States and France which, more than anything else, brought the Aristide misrule in Haiti to its belated end. Indeed, an essentially economic measure could be just as effective: the imposition of targeted sanctions against individual actors within a rights-violating regime, which should necessarily involve the confiscation of stolen State assets (and their proceeds), would make a Mobutu or an Abacha-style "rule by theft" inherently unprofitable for those concerned. Regrettably, neither of these can be considered a realistic possibility: A Haiti-style solution, for example, would have to be repeated in over 40 different countries on the continent, while the kind of targeted sanctions envisaged would certainly be resisted by the powerful Western banking institutions in which the stolen funds are hidden.¹⁹² At any rate, given that this is primarily a law-based critique - not to mention the fact that political will on the part of the international community to adopt the above measures is simply non-existent - only the legal possibilities will be explored.

¶ 64         As of March 2003, the majority of countries in SSA had ratified the two Covenants.¹⁹³ By so doing, African rulers, like other world leaders, explicitly pledged themselves to the realization of the rights proclaimed therein.¹⁹⁴ Indeed, even within the context of customary international law, the UN Declaration on the Right to Development, for example, explicitly identifies the State as the primary guarantor of human rights.¹⁹⁵Thus, any examination of the problems faced by the region must necessarily begin with an acknowledgement of the legal obligations that its rulers have voluntarily undertaken, a deliberate breach of which should serve as a convenient basis for the sanctions to be examined. Before exploring such legal remedies, however, it is pertinent to acknowledge that an attempt to invoke them would not be unproblematic, although as will be shown later, these in themselves are not insurmountable obstacles.

¶ 65         The first of these apparent obstacles relates to the nature of States Parties' obligations as spelled out under the ICESCR itself: to "take steps...to the maximum of its available resources, with a view of achieving progressively the full realization" of economic rights.¹⁹⁶ A number of related problems immediately spring to mind in this regard, the first being the indeterminate nature of the phrase "to the maximum of its available resources." This inherent vagueness means that it lends itself very easily to subjective interpretation, especially by regimes intent on keeping their citizens in perpetual misery. Indeed, the Committee on Economic, Social and Cultural Rights (hereinafter the Committee)¹⁹⁷ alluded to this possibility by noting that this concept is often treated by governments merely as a statement of intent, as opposed to "a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of [economic rights]."¹⁹⁸ The Committee however went on to explain that Article 2(1) "imposes an obligation to move as expeditiously and effectively as possible towards that goal."¹⁹⁹ Interestingly, various experts on this subject, acting in concert with certain interested parties, including the UN Centre for Human Rights, had earlier proclaimed the much-cited Limburg Principles (and ten years later, the Maastricht Guidelines) echoing similar views in an attempt to explain the nature of States Parties obligations.²⁰⁰

¶ 66         But how, it might be asked, are countries that are too poor to realize these rights, supposed to take steps to realize them? There is little doubt that at first sight, this apparent contradiction seems as self-explanatory as the basic legal maxim: nemo dat quod non habet - one, after all, cannot give that which he does not have. This, however, must not be the end of the argument, not least because the question of resources can itself become a most convenient excuse for egregious violations. At any rate, as explained within the Limburg Principles, "[t]he obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available."²⁰¹ Moreover, in its Human Development Report for the year 1990, the United Nations Development Programme stated: "Developing countries are not too poor to pay for human development...Most budgets can...accommodate additional spending on human development by reorienting national priorities..."²⁰² The report cites defence spending as one area where countries tend to waste their scarce resources.²⁰³ To this could be added the "white elephant" projects and blatant misuse of public funds on the part of African rulers (some of which are outlined in Part III). Thus, this apparently insurmountable problem can be mitigated by a simple reordering of priorities by governments in the region.

¶ 67         The second problem relating to the nature of States Parties' obligations is that an international tribunal (of the kind envisaged herein) charged with determining whether a ruler of a poor country has violated his people's right to food, for example, might wonder whether this is not an essentially economic question,²⁰⁴ as opposed to one involving a breach of international law. What is being proposed in this article, however, is not the indictment of every ruler for every violation of every right proclaimed under the ICESCR, just as the International Criminal Court, for example, is not mandated to adjudicate on every violation of every right under the ICCPR.²⁰⁵ Nor would a single case of malaria, even if caused by a failure to provide essential drugs in hospitals, necessarily result in an indictment. On the contrary, what is envisaged is conduct that results in the scale of suffering of the kind highlighted at the outset. Much, therefore, would depend on the severity and scale of the violation(s) alleged: The conduct of the accused must have been so objectively blameworthy, and the harm in question so easily avoidable that it could reasonably be held to have been a flagrant violation of not just the relevant right under the ICESCR, but also of the right to human dignity which, after all, is the very essence of human rights, as proclaimed under the various international instruments.²⁰⁶ In other words, a broad liability threshold would have to be established, to be mitigated only by a "best endeavour" defence on the part of the accused.

¶ 68         The third apparent obstacle in regard to the nature of States Parties' obligations is the very notion of "progressive realization" itself, which invariably entails extensive data accumulation and analysis, a task which poor countries with inadequate manpower, institutions and infrastructure cannot hope to accomplish, and which therefore arguably defeats the essence of the notion itself. Indeed, it was in the light of this that a former Rapporteur to the United Nations Centre for Human Rights proposed her much-cited "violations approach," based, as she explains, on the existing monitoring processes of other human rights instruments.²⁰⁷ Moreover, as pointed out by Steiner and Alston, the monitoring of economic rights is "especially challenging" because of "the scope of the rights, the diversity of the means by which they might be made operational, and the inevitably complex relationship between rights and resources."²⁰⁸ From a legal perspective, they assert, the challenge is how to reconcile, through the monitoring process, the notion of progressive realization with the practicalities of resource constraints, while acknowledging the dramatic disparities in financial and administrative capacities between countries.²⁰⁹ Yet, as the concept itself suggests, what is envisaged is not the immediate realization of universal standards applicable to every right proclaimed by the ICESCR. On the contrary, what is required is a serious attempt on the part of governments to realize these rights, beginning with the most fundamental ones, particularly those relating to basic human needs. This, after all, would explain the reliance, by the Committee, on the so-called "minimum core content" approach, focusing on the realization of such basic rights as food, healthcare, housing, and education.²¹⁰ An individual complaints procedure broadly similar to that which already exists under the First Optional Protocol to the ICCPR is also being proposed.²¹¹ It thus becomes possible to argue that these difficulties, at the very worst, are in no sense dissimilar to those that exist within other international human rights instruments.

¶ 69         The language employed by the drafters of the ICESCR is widely believed to be merely exhortatory and therefore non-binding.²¹² Indeed, even some renowned international lawyers who are known advocates of economic rights have raised questions regarding the extent to which the Covenant lends itself to effective enforcement.²¹³ Whether such a material difference exists between the two Covenants is however debatable, not least because most of the rights proclaimed under the ICCPR are not expressed in the absolute, non-derogable terms that are often ascribed to them: Even the right to life, for example, is only guaranteed to the extent that it is not infringed arbitrarily.²¹⁴ At any rate, even if the ICESCR were to pose such a problem, this would be no more serious that those which confront the municipal courts from time to time; hence, the development of well-established rules of interpretation, particularly in the common law world. For example, where a literal interpretation would result in an absurdity, judges have always been at liberty adopt the "golden rule," or its close variant, the "mischief rule," which gives an intended effect to the instrument²¹⁵ - the "mischief" here being the need to uphold the inherent dignity of the human person as proclaimed in the Preambles to the two Covenants). Indeed, the Vienna Convention on the Law of Treaties offers useful guidance in this regard by stipulating that a treaty "be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"²¹⁶ [emphasis added]. There is therefore a danger of overstating the significance of this apparent difference, thus accentuating a fictional distinction between rights that have, after all, been universally recognized as interrelated, interdependent, and indivisible.²¹⁷

¶ 70         As already pointed out, the "enforcement" of economic rights as such takes place through the process of supervision by above Committee, which merely monitors the extent to which its States Parties claim to have realized the rights proclaimed within it,²¹⁹ particularly through the mechanism of State reporting - a process which, by all accounts (and amongst other flaws), relies entirely on the goodwill and sincerity of the very governments that stand accused of the violations in question. It was, after all, a veteran of the same Committee who, reflecting on how it might be seen by a lay person, once described it as: "...a system that makes governments entirely responsible for reporting on themselves, once every five years, subject to soft questioning for a few hours by cautious committees, elected by those very governments, and with almost no likelihood of serious censure or sanctions."²²⁰

¶ 71         However, the absence of a more effective mechanism for their enforcement should in no sense imply their unenforceability in a coercive sense. Indeed, as will be shown in this section, there are instructive precedents in this regard, both under municipal and international law. In any event, the ICESCR is not unique in not having its own coercive internal enforcement mechanism. An examination of the ICCPR reveals that it has no such mechanism either.²²¹ Yet, such internal limitations have been shown to constitute no bar to the effective enforcement of the rights recognized under the ICCPR. The establishment, by the UN Security Council, of ad-hoc tribunals for the prosecution of individuals accused of serious violations of international humanitarian law in the former Yugoslavia²²² and Rwanda²²³ serve as examples of how such internal instrumental limitations can be overcome, while the establishment of the International Criminal Court puts this ad-hoc approach (though primarily to the enforcement of civil and political rights) on a permanent basis.²²⁴ Indeed, the fact that the UK authorities were legally obliged (by virtue of the Torture Convention)²²⁵ to arrest and examine the possibility of extraditing Pinochet to Spain on allegations of torture was further illustration of this reality,²²⁶ although this must now be read in light of a decision by the International Court of Justice concerning a Congolese foreign minister accused of violating the 1949 Geneva Conventions and of crimes against humanity.²²⁷ What these demonstrate, nevertheless, is that there are no conceptual or practical obstacles to holding State officials to account for grave violations of economic rights in the manner envisaged, albeit only after they would have left office, provided the political will exists at the international level.

¶ 72         The vexed question of national sovereignty poses a real obstacle to the indictment and punishment of rulers who violate their people's economic rights. Arguably the cornerstone of international relations, it is rooted in Article 2(7) of the UN Charter which states: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State..." What this means is that governments that, as noted in Part IV, are notoriously resistant to external scrutiny are even less likely to be receptive to any interference in regard to matters that are essentially economic. Indeed, they may even invoke their right to self-determination as guaranteed under the two Covenants with some justification.²²⁸ Moreover, although developments post-WWII have consistently shown that national sovereignty represents no bar to external scrutiny where serious human rights violations are alleged, such developments have primarily (and almost exclusively) been confined to the broad sphere of civil and political rights.²²⁹ Thus, any attempt to extend them to economic rights would, prima facie, be breaking new ground.

¶ 73         Paradoxically, however, these same post-war developments also suggest that indictments for violations of economic rights would not necessarily involve such a radical change, conceptual or practical. For example, whether by design or by default, even the UN Security Council has explicitly invoked its powers under Chapter VII of the UN Charter to prevent what were essentially, though by no means exclusively, violations of economic rights in certain countries, Somalia being a prime example.²³⁰ Indeed, it could be argued that any intervention on humanitarian grounds is essentially aimed at protecting the economic rights of those affected, at least insofar as such Resolutions include a mandate to guarantee the delivery of emergency relief such as food, shelter and medical care. The principle, therefore, is that where violations are considered to pose a threat to international peace and security, the sovereignty of the State concerned becomes an irrelevant consideration.

¶ 74         One further apparent problem with an indictment for violations of economic rights would be the fact that the very nature of the rights proclaimed under the ICESCR strongly suggests that liability would be incurred mainly by way of an omission, and not by positive conduct. Indeed, the Limburg Principles employ the term "failure" in describing what amounts to a violation of economic rights.²³¹ The question, therefore, is whether the notion of criminal liability by omission is a known concept in international law. A good starting point would be a brief consideration of English law, where this principle has had a long history. At the risk of oversimplification, the general principle is that liability can flow from an omission, provided it can be shown that the accused had a duty of care (an obligation not dissimilar to those undertaken by governments under Article 2 of the ICESCR) towards the victim. By a remarkable coincidence, many of the judicial authorities in this regard relate to aspects of economic rights.²³² The most authoritative decision to date is R v Adomako,²³³ where the House of Lords upheld a conviction for gross negligence manslaughter, because the accused, an anaesthetist, had treated his patient (to whom he obviously owed a duty of care) in a manner that was considered to be abysmally below what could reasonably be expected of a physician of his experience. In other words, he had failed to exercise this duty to the standard expected of a person with his skills and experience.

¶ 75         At the international level, the relevant authorities are to be found in the areas of international criminal or humanitarian law, where the position is not dissimilar to that under English law. As pointed out by a former judge (and later, President) of the International Criminal Tribunal for the Former Yugoslavia, "[i]nternational criminal liability may arise not only as a result of a positive act...but also from an omission, that is, failure to take action...when the law imposed a clear obligation to act and the person wilfully or recklessly failed to do what was legally required."²³⁴ Examples cited include the duties imposed by various provisions of the Geneva Conventions of 1949 governing the conduct of parties during armed conflict, breaches of which constitute violations of the law of war.²³⁵ Indeed, duties very similar to those undertaken under the ICESCR can be found under the Second Geneva Convention, which provides that enemy combatants who are wounded, sick, or shipwrecked "shall not be wilfully left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created."²³⁶ Even more remarkable are Articles 55 and 56 of the Fourth Geneva Convention which impose an obligation on an Occupying Power to provide food, medical supplies, public health and hygiene to the civilian population "to the fullest extent of the means available,"²³⁷ and Article 69(1) of the First Additional Protocol which obliges an Occupying Power to provide the means for satisfying the basic needs of the civilian population, again, "to the fullest possible extent of the means available."²³⁸ Violations of these instruments, it is worth noting, constitute war crimes.²³⁹ These thus make it possible to argue that if breaches of obligations similar to those imposed by the ICESCR could attract that level of liability, there is indeed no excuse for not regarding breaches of the Covenant (particularly those relating to the "minimum core obligations" already spelled out) as being of the same degree of seriousness.

¶ 76         The "human rights solution" proposed herein is therefore not new in any sense, at least insofar as clear and authoritative precedents exist both under municipal and international law, for punishing those who cause death or unnecessary suffering by omission, specifically in relation to certain basic rights now recognized within the ICESCR. The idea is that rulers who either deliberately abandon their elementary obligations towards their citizens, or expose them, for example through massive corruption, to avoidable economic misery such as famine, homelessness (e.g., through wars, which result in mass migration), and/or disease would be treated in the same way as those who violate the peremptory norms of international law. This would have two related positive outcomes for human rights advocacy: It would reaffirm the importance of the core elements of economic rights to the notion of human dignity (without which other human rights become meaningless) and in the process, elevate economic rights to the level of importance that is increasingly being accorded to civil and political rights. This, after all, would be the only logical meaning implied by the various UN Declarations proclaiming the "indivisibility" and "interdependence" of human rights.²⁴⁰

¶ 77         In proposing the possible indictment of rulers for violations of economic rights, one commentator has persuasively advocated a "Crimes Against Humanity" approach, to be based on existing frameworks in international criminal law.²⁴¹ Her thesis is that "the definition of crimes against humanity is open-ended enough to include economic...rights...and the concept does not require an international conflict, but rather systematic and large-scale abuse for it to be triggered."²⁴² Of particular interest, amongst the various instruments cited is Article 7(k) of the Statute of the International Criminal Court (hereinafter ICC Statute) which defines crimes against humanity to include: "other inhumane acts...intentionally causing great suffering or serious injury to body or mental and physical health."

¶ 78         There is little doubt that the phrase "other inhumane acts..." would clearly cover certain violations of economic rights. For example, the infliction of bodily harm on a prisoner, while primarily a violation of the Torture Convention,²⁴³ is also an inherently inhumane act. Indeed, very few observers would deny that this would also be a direct violation of the victim's right to health - a core aspect of economic rights. Yet, the ICC Statute does not recognize violations of economic rights as such. At first sight, this should not pose any insurmountable difficulty, since the envisaged tribunal would almost certainly not be concerned with any apparent distinction between the two categories of rights, especially given that that would be against the established rules of customary international law.²⁴⁴ Indeed, as the above cases (Sumida Haruzo & others, and Gozawa Sadaichi & others) illustrate, violations of economic rights had been punished as war crimes even before the drafting of the ICESCR. The point to note, however, is that the core elements of economic rights, particularly the rights to food, health, and housing, are too essential to human existence and dignity to be treated, in effect, merely as incidental rights.

¶ 79         Moreover, although the ICC Statute does not address itself explicitly and exclusively to crimes committed during armed conflict, the very nature of the crimes outlined under Articles 5-8,²⁴⁵ and the degree of seriousness required,²⁴⁶ lend themselves easily (rightly or wrongly) to this interpretation. This being the case, it becomes safe to argue that for violations of economic rights to be punished under the heading of crimes against humanity, there must almost certainly have been an armed conflict (in which case a violation of economic rights would be considered under the category of "other inhumane acts") which, in any event, excludes liability for omissions on a literal interpretation. Yet, although contemporary Africa has come to be defined by endless wars (as noted in Part III) many of the most serious violations of economic rights in the region take place in non-conflict situations. Moreover, although mass impoverishment of the kind described therein might be said to be a function of positive conduct (e.g., the transfer of State assets into personal accounts abroad), the resulting human rights violations remain, essentially, crimes of omission. Thus, while a "crimes against humanity approach" is undoubtedly an attractive proposition, it would not be adequate to deal effectively with the African status quo. What is being proposed herein, therefore, is a recognition of the inherent importance of economic rights, either by broadening the jurisdiction of the International Criminal Court by an Additional Protocol, or by the establishment of a separate tribunal for the same purpose. There is, in other words, a need for a degree of clarity that befits the nature of the rights in question, as well as the nature of the punishment envisaged.

VII.    Conclusions

¶ 80         This article became necessary in the light of the very human tragedies that have defined sub-Saharan Africa since decolonization, and which continue to inflict untold suffering on its people even as the world begins to settle into the 21st century. In the course of the critique, it became clear that contrary to common assumptions, these tragedies are simply the direct consequence of an inability (or unwillingness) on the part of its rulers to attach any degree of seriousness to their legal responsibilities towards their citizens. Yet, the tragic irony is that as the people of Somalia have so clearly demonstrated, ordinary Africans are a remarkably self-reliant and resourceful people - a people quite capable of liberating themselves from economic misery if given the chance.

¶ 81         Given, however, that they are very unlikely to be given that opportunity (for reasons discussed in Part V), it becomes necessary to argue that the necessary change would have to be initiated from outside the region, and at two levels: First, international actors must desist from predicating their engagement with the region's rulers on the gratuitously emotive notion of a "partnership" and instead, should adopt a more discerning approach, with the aim of offering appropriate inducements to those who take their people's rights sufficiently seriously.²⁴⁷

¶ 82         Change is also considered necessary in the very nature of human rights advocacy itself. First, there is a need to highlight the fact that in addition to the explicit undertaking by States Parties to the two Covenants, customary international law (as evidenced by the UN Declaration on the Right to Development) imposes the primary responsibility for the realization of human rights on governments. Thus, the traditional exclusive focus on exogenous factors in an attempt to explain Africa's problems is no longer tenable. Secondly, as with civil and political rights, where the violation of economic rights undermines the dignity of the victims on a scale already described, the possible criminalization of those concerned should be a foremost consideration in human rights advocacy. This, after all, would be one way of giving any real meaning to the rhetoric proclaiming the indivisibility and interdependence of human rights.

¶ 83         To be sure, any permanent solution to Africa's problems will have to come from Africa; this, if nothing else, is the very essence of the right to self-determination. However, given how disempowered many of its people have become, this cannot be a practical possibility in the short term. Neither can the world afford to wait for long-term solutions to emerge, given the urgency of the situation. The international community cannot therefore afford to abandon millions of helpless people to the whims of rulers who have proved themselves so instinctively contemptuous of their basic needs, and totally insensitive to their suffering.

ENDNOTES