Obiora Chinedu Okafor. The African Human Rights System, Activist Forces and International Institutions. Cambridge: Cambridge University Press, 2007. xiv + 336 pp. $110.00 (cloth), ISBN 978-0-521-86906-5.

Reviewed by Robert Tynes (SUNY/New Paltz)
Published on H-Human-Rights (June, 2009)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)

The Impact of Human Rights within the African State

Military despots sporting slick mirrored sunglasses, child soldiers, cannibals, civil wars, and pirates: one wonders, is there any room for human rights in Africa? Even though these stereotypes are often dismissed by human rights scholars as empty, normative heuristics, one wonders--could the study of international human rights institutions also contain traces of bias about Africa's ability to conform?

In The African Human Rights System: Activist Forces and International Institutions, international law theorist Obiora Chinedu Okafor uproots these notions of an underdeveloped and potentially backward human rights system in Africa. Okafor’s study tackles several questions, including: What impact, if any, has the African Human Rights System had domestically? Have norms created in 1981 by the African Charter on Human and People’s Rights trickled down to African citizens? And, if so, is the way in which these ideas have spread similar or different from how other human rights norms have spread through other continents? Okafor concludes that despite previous studies, many of which deem the African Human Rights System weak, ineffectual, or dysfunctional, human rights norms are seeping into the courts, the executive branches, and the legislatures in numerous states.

Okafor argues that in order to see the effects of the African Human Rights System (a combination of international law and institutions comprised of the African Charter, the African Commission on Human and People’s Rights, the African Court of Human and People’s Rights, and the new Protocol on the Rights of Women in Africa), we have to loosen our dependence on state-centric models of success. He says that by using such an optic, human rights research has developed a blind spot. Because scholarly studies focus too heavily on the international level of analysis and take state compliance as the sine qua non measure for effectiveness, we miss what is happening inside the black box of the state. In fact, he argues, the African System is working, but at the domestic level. Human rights norms are affecting the thoughts and actions of domestic institutions in states such as Nigeria, South Africa, Ghana, Botswana, and Benin.

Okafor’s domestic-level model proposes that activist judges and civil society actors (activist lawyers, women’s groups, faith-based groups, etc.) are brokering and transmitting human rights norms between the African System and African domestic institutions. It is “a process of trans-judicial communication that involves the creation of a virtual human rights network among the African System and these activist forces” (p.4). The result is that  human rights norms that begin with the African Charter are ending up in legal arguments, constitutions, and legislation, even though the African state might not be complying with the doctrine at the international level. This, asserts Okafor, is what state-centric analyses miss, and it is why the African System should be seen as, at the very least, modestly effective and progressing. Okafor uses the term “correspondence” (as a counter to compliance) to denote the phenomenon.

Chapters 1-3 outline the basic definitions of his terms, set up the main arguments and models, and review and critique the major international relations/law theories commonly utilized in the field. What we end up with is a conceptual framework based on quasi-constructivism, a position partly based on the theories of Martha Finnemore and Kathryn Sikkink in which norms and norm cascading lead to institutional changes.[1] In Africa, human rights change is brought about by activist forces or norm entrepreneurs. Okafor’s shift is far from realism, slightly askance of neoliberalism, and beyond even more dynamic network models such as transnational advocacy networks (TANs).[2] What Okafor is uncovering, although he does not use this terminology, is the social network pathway that human rights norms are traversing in several African states. As evidence of this phenomenon, he offers two detailed case studies (Nigeria and South Africa) and more than thirty examples from other African states.

Chapter 4 introduces the tough case of Nigeria, where the African System has had “modest yet significant influence,” despite dictatorial military regimes (p. 93). Okafor examines four areas where the African Human Rights System has had an impact: on judicial action, executive action, legislative action, and civil society actors’ (CSAs) struggles. In Nigeria, he finds that CSAs are the main driving force for shifts in human rights norms. By filing stays of executions with the African Commission in order to save the lives of Katif ethnic minorities, or communications protesting suppression of the press, CSAs are earning favorable and progressive rulings in Nigeria. The behavior of the executive branch has also been modified, for example by allowing investigations by the African Commission into the death of Ken Saro-Wiwa. Okafor admits that Nigerian officials did not concede or drastically alter their positions on the issue; however, the fact that they even permitted the inquiry marks a significant, incremental change. Evidence of key changes in Nigerian law, such as the restoration of habeas corpus and the rights to appeal, thanks to the African System, are presented as well. One key point for human rights progress in Nigeria, says Okafor, is that the African Charter allows for NGO participation, which gives CSAs more leverage with domestic institutions, and that there is a vibrant CSA force in Nigeria.

Chapter 5 follows the same lines of impact (judicial, executive, legislative, and CSAs) for South Africa, but the findings are slightly different. Okafor states that the African System has had an “appreciable degree of impact” (p. 155) in South Africa, but it is to a lesser degree than in Nigeria. This finding is interesting because of the more democratic regimes in South Africa. A significant difference with the South African case is the “relatively low (though growing) level of deployment” of CSAs (p. 206), as well as the state’s relative youth in the African Human Rights System. South Africa was not a member of the Organization of African Unity before 1994, and it did not ratify the African Charter until 1996. Nevertheless, Okafor demonstrates (with about twenty legal cases) that the African System has had an impact, due largely to activist judges.

Chapter 6 provides an assortment of evidence to show how the African System has at least touched many other African states. Evidence from Togo, Botswana, Mozambique, Mali, Mauritius, Algeria and Ghana, and Zimbabwe is provided to highlight the effects of the African Charter and/or the African Commission.

At the end of chapter 6, Okafor offers eight minimum conditions to optimize the impact of the African System. The overriding factor is the need for strong CSAs, coupled with an independent judiciary and space for political dissent. Other, more institutional approaches, including the acceptance of the African Charter in domestic laws, are also outlined.

In chapter 7, the author’s arguments are broadened to show how the book’s framework might be applied to examine the effects of other international human rights institutions (IHIs). In order to improve IHIs, Okafor advocates reducing the emphasis on domestic analogies (i.e., IHIs should function like domestic courts), on textual and organization reforms, and on the state compliance rubric. The final chapter then recapitulates and summarizes the general arguments of the book.

Okafor’s project is ambitious. As he admits, his evidence does not prove that all is well with human rights in Africa. What he offers, though, is ample amounts of persuasive evidence to demonstrate that all is not lost. If, as Okafor states, “the point of the whole book … is to identify, discuss, and analyze evidence that tends to show a possibility of domestic correspondence with the African system’s norms” (p. 224), then he has succeeded. As it stands, Okafor’s research provides mostly textual indications of a human rights impact. If we are to accept fully Okafor’s quasi-constructivist approach, then we must delve deeper into the domestic level. This means interviewing CSAs and activist judges and doing ethnographic fieldwork in order to uncover a finer sense of how human rights norms and identities are embedding in African society. What Okafor offers is a useful guide to initiate this process.

Notes

[1]. Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52 (1998): 887-917.

[2]. Margaret Keck and Kathryn Sikkink, Activists Beyond Borders (Ithaca and London: Cornell University Press, 1998).

If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-human-rights.

Citation: Robert Tynes. Review of Okafor, Obiora Chinedu, The African Human Rights System, Activist Forces and International Institutions. H-Human-Rights, H-Net Reviews. June, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=24389

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.