The right to development in Africa: an emerging jurisprudence?

Examining the Endorois recommendation by the African Commission for Human and People’s Rights

Rebecca Browning*[1]

LLB, University of Cape Town

August 2011

The United Nations Office of the High Commissioner for Human Rights recently marked 2011 as the 25th anniversary of the UN Declaration on the Right to Development.[i] Unfortunately, the OHCHR acknowledged that the Declaration has had little significant practical impact:

‘Many children, women and men – the very subjects of development – still live in dire need of the fulfilment of their entitlement to a life of dignity, freedom and equal opportunity. This directly affects the realization of a wide range of civil, political, economic, social and cultural rights’.[ii]

Despite the office’s bleak conclusions on the state of human development, there is new jurisprudence emerging from Africa promoting the right to development as a justiciable human right. In a landmark decision, the African Commission on Human and People's Rights made a recommendation vindicating the right to development of the Endorois People. They alleged that Kenya had infringed their right to social, cultural and economic development under Article 22 of the African Charter on Human and People's Rights[iii] in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya[iv] issued in May of 2009.

The Endorois are a small group of indigenous Kenyans that inhabited the lake Bogoria area in central Kenya. They were evicted in 1970’s to make way for a nature reserve. Even though they had lived there since ‘time immemorial’, they were afforded no right of participation in the gazetting of the land as a nature reserve nor given adequate compensation for its expropriation. After being evicted from the fertile land around the lake, the Endorois were forced to live on arid land where many of their cattle died and they suffered hardships. In their recommendation after hearing from both the Endorois and Kenya, the Commission recommended the return of the Endorois’ lands. It also recommended that Kenya afford them the right to participate in their own development in the future. By doing so, the Commission took a controversial, yet firm stand in the promotion of indigenous and minority rights. This is particularly important as it ensures that states whose actions negatively affect access to commodities essential to the continued livelihoods of indigenous peoples are subject to scrutiny instead of being ignored – thus contributing to the emerging jurisprudence and scholarly debate on the right to development.

1.  Contextualising the concept of development in a changing world order

To a Westerner, development is a term often used to distinguish the developed world with the developing or underdeveloped world. It is seen as an act of charity, such as when it’s used as ‘development aid’ to the developing world. To the development community, development can be seen as the use of social, economic and, more recently, legal mechanisms to effect change and achieve a higher standard of living in developing or underdeveloped states. As a discipline, it now encompasses such broad areas as human rights, infrastructure and planning, economics, political governance, health, a sustainable exploitation of the natural environment and international aid. It could thus be said that ‘development’ defies conceptual definition due to its broad scope, and remains subject to some controversy.[v]

Previous approaches to development in developing states have often proven to be inadequate or narrowly focussed. Some concentrated on mere gains in Gross Domestic Product or increases in Foreign Direct Investment as primary outcomes as opposed to holistic social, economic and cultural development. Many programmes aimed to place facilities and infrastructure at the disposal of the poor instead of empowering self-development and choice.[vi] These approaches may have ignored the complexities of culture, prolonged economic marginalization and capacity of the poor to take control of their own development when deciding on aid allocation and assistance programmes. Outcomes such as supporting democratic governance, expanding education and healthcare programmes and improving the sustainability of aid are now being seen as better approaches, as well as formulating novel means to achieve effective utilisation of and reducing dependency on aid.[vii] Some also argue that participation by communities is an essential part of development and can lead to realization of other social, cultural and economic rights and freedoms through developing capacities for increased civic involvement and deliberative democratic processes.[viii]

Economic theorists, for example, are now looking at the reasons for income disparities across nations and the reasons for success or failure for certain developmental interventions in trying to develop locally applicable development programs.[ix] They take into account the different organisational structures between industrialised and developing states and push for organisational change of governments.[x] The UN's Human Development Index has now been adapted to include a more holistic evaluation of human development including data on life expectancy, literacy, education and standards of living for countries worldwide. It is used to distinguish whether the country is a developed, a developing or an under-developed country, and also to measure the impact of economic policies on quality of life.

The World Trade Organisation (WTO) has special clauses that deal with the position and needs of developing countries and Least Developed Countries (LDC’s) which take into account their marginalised position in world trade and reliance on the export of primary goods.[xi] The current round of trade negotiations, the Doha Round, has stalled as disagreements by developing nations over several issues, especially agricultural subsidies in the EU and the USA, which have negative effects on developing states reliant on agricultural exports, have not been resolved.[xii]

There are now various international organisations and UN specialised agencies, such as the UN Development Program, World Health Organisation, the Food and Agriculture Organization, the Human Rights Council and the World Bank, which have attempted to develop programmes and policies to address poverty in developing states. International and regional organisations such as the New Partnership for Africa’s Development (‘NEPAD’) and the Southern African Development Community (‘SADC’) take more holistic approaches to development. As an example of initiatives taken to improve political governance NEPAD recently instituted the African Peer Review Mechanism to increase inter-state accountability in Africa.[xiii] Development has become an important goal or aim in international economic relations and policy. As such, various agreements relating to trade[xiv] and regional development[xv] aim for more equitable trade relations, development and co-operation between states.

Thus it is clear that we are entering a new phase in our approach to development, where appreciation for the ability of persons to participate in their own develop and effective distribution of aid and a more coherent idea of what human development encompasses is evolving. As the economic and social theories are crystalizing into more concrete action plans, there is a need for a better discussion of the often neglected legal aspects of development. This work examines the nature of the right to development in light of the Endorois recommendation of the African Commission, which shed light on development as a human right as it emerged at regional African level, and is the product of a unique African jurisprudence. The recommendation should be seen for what it is: hope for a African solution to respect and participation of its peoples to their own development, which I will argue, also includes the right to be self-sustaining and the freedom to make their own choices, and not be ‘developed’ in the traditional sense of the word.

2.  The Right to Development

In international human rights discourse, the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights (ICCPR)[xvi] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[xvii] are seen as part of a universal Bill of Rights, which some have argued have become part of customary international law. The legal basis for the right to development (‘RTD’) evolution is contained in Article 1 of the ICCPR which states that ‘[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Furthermore it states that ‘[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources … In no case may a people be deprived of its own means of subsistence.’

After being discussed by academics and in the General Assembly of the UN, the GA adopted the UN Declaration on the Right to Development[xviii] in 1986. It is not a binding convention but, as is often the case with soft law documents, can lead to further legally binding effects through treaties or the crystallisation of state practice and opinio iuris into customary international law.[xix] The Declaration on the RTD is the only truly international document dealing with the right in detail.[xx] It defines what the right entails and assures collective and individual achievement of the RTD. It places the prerogative of equal development with both individuals and states.[xxi] The Declaration states that the individual is both subject and participant in their own development, and individual not take a passive role, but actively seek to better their situations in co-operation with the state and the international community.[xxii]

Some have described the RTD as a ‘composite right’ due to its complex nature – very similar to the right to self-determination - as it involves the realization of both classic freedom rights as well as socio-economic policies, whose reasonableness may be tested in times of gross violation.[xxiii] Some developed blocs, such as the European Union have asked for further clarity on the right and have contributed positively to the field.[xxiv] Despite this, the right is still contested in both academic and political circles, with some questioning whether it is a right at all.[xxv] Thus, some conclude that the right is too broad and difficult to quantify, can be inferred from other rights (the so-called ‘interconnectedness of rights theory’),[xxvi] is difficult to litigate and is perhaps more of a moral principle than a true right.

3.  The African approach to the Right

The African Union, constituted in 2000, replaced the Organisation of African Unity, which, due to its principle of non-interference was arguably largely ineffective in the promotion and protection of human rights in post-colonial Africa.[xxvii] In its Constitutive Act of 2000 the AU committed itself to a policy of non-indifference[xxviii] to abuses of human rights and the right to interfere in member state's internal affairs, further recognition of the full range of human rights, promotion of social, cultural and economic development, human centred-development and gender equality.[xxix] The AU made human rights part of its programmes, activities and institutions - but concerns remain about the capacity of the AU to make a difference due to the lack of political will on behalf of many states to implement human rights standards in domestic law - as well as lack of resources available to human rights mechanisms and the non-binding nature and lack of implementation and oversight measures of many of the human rights instruments.[xxx]

Signatories of the African Charter on Human and People's Rights[xxxi] ('the Charter') have gone one step further than the UNGA regarding the RTD and are bound by treaty to protect, promote and fulfil the right to development under Article 22 of the Charter. The Charter is seen as a very progressive human rights instrument which recognises several controversial ‘third generation’ rights such as the right to development and a clean environment, certain group rights such as the right to self-determination as well as duties, such as the duty to promote the achievement of African unity. Interestingly, the African Charter was the first and is the only international human rights instrument that recognises the right to development as a discrete justiciable right, as now confirmed in the Endorois recommendation.

Some have argued that the RTD is promoted through other rights in the Charter such as the rights to self-determination, property, natural resources, life and some socio-economic rights. Many of these rights were vindicated in the Commission's 1996 SERAC & CESR v Nigeria recommendation which dealt with environmental and socio-economic rights of the Ogoni people in Nigeria.[xxxii] The interconnectedness of rights principle states that a socio-economic right, such as the right to food is inherent in the protection of the rights to life, health and the right to economic, social and cultural development.[xxxiii]

4.  The Emergence of the Right to Development under International Law

The Universal Declaration on Human Rights (‘UDHR’) and the Charter of the United Nations[xxxiv] form the basis of any analysis on the RTD and its genesis. Article 56 of the Charter commits all member states to take ‘joint and separate action in co-operation’ with the UN to achieve the purposes of Article 55 which includes human rights, ‘higher standards of living … and conditions of economic and social progress and development’ and ‘solutions of international economic, social, health and related problems’. Article 28 of the UDHR provides that: ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’.[xxxv] Some have interpreted these articles to give rise to a duty to co-operate or a right to solidarity with other nations whose resources are inadequate or who are unable to provide social assistance to their own people.[xxxvi] However, there is much theoretical discord amoung scholars regarding this deduction, with some doubting that such a duty exists in international law, due to the non-binding nature of the UN Charter and disputed customary international law status of the UDHR.

A.  Theoretical discord

The RTD is a difficult right to place within the classic human rights dichotomy, which is often divided by ‘justiciable’civil and political rights and ‘non-justiciable’social, economic and cultural rights. However, the UDHR included both civil, political, economic and social rights as fundamental human rights. Many scholars and the UN in its 1993 programme of action also assert that ‘political and economic rights [are] interrelated and interdependent’.[xxxvii] In fact, US President Roosevelt stated in 1944 that ‘true individual freedom cannot exist without economic security and independence’ and included ‘freedom from want’ as one of the four freedoms of the new post-war order.[xxxviii] Eleanor Roosevelt, head of the US delegation during the drafting of the UDHR, was the first person to advocate the right to development as part of a global bill of rights when she stated that ‘one of the most important rights is the opportunity for development’.[xxxix]