On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.11 n.1 Pretoria Jan. 2011
Conrad Mugoya Bosire
Doctoral Researcher and PhD Candidate, Local Democracy, Peace and Human Security Programme, Community Law Centre, University of the Western Cape, South Africa
There is increasing recognition of the role of local government in the protection and realisation of human rights obligations. Recent studies on links between local government, decentralisation and human rights are evidence of this growing recognition. In Africa, there are newly-formed pan-African institutions on local government. Local authorities and national local government associations have also formed a regional association. National ministries in charge of local government have formed a regional inter-ministerial forum on local government and decentralisation. This trend is replicated at sub-regional levels in Africa. While the place and role of local government in international human rights law are not yet fully understood, the formation of these institutions provides an appropriate avenue for the same. The article makes a case for institutional collaboration between these regional institutions, sub-regional institutions and the African Commission on Human and Peoples' Rights in order to achieve more effective rights protection. While this article presumes that such institutional collaboration will lead to better protection of human rights, it makes a further argument that this will only happen where the specific gaps identified are addressed to strengthen the role of local government in human rights.
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* LLB (Moi), LLM (Human Rights and Democratisation in Africa) (Pretoria); firstname.lastname@example.org.
1 Y Fessha & C Kirkby 'A critical survey of subnational autonomy in African states' (2008) 38 Publius: The Journal of Federalism 248 249. [ Links ]
2 As above.
3 ICHRP Local rule: Decentralisation and human rights (2002) 4.
4 See generally B Neuberger 'Federalism in Africa: Experience and prospects' in DJ Elazar (ed) Federalism and political integration (1979) 183.
5 WS Ayres 'Supporting decentralisation: The role and experience of the World Bank' in Swiss Agency for Development and Co-operation Decentralisation and development (1999) 70-85.
6 ICHRP (n 3 above) 1; JW Nibbering & R Swart 'Giving local government a more central place in development: An examination of donor support for decentralisation' http://www.lux-development.lu/workshop/segou2010/docs/NL%20Donor%20 support%20for%20decentralisation.pdf (accessed 20 October 2010).
7 ICHRP (n 3 above) 2.
8 J Ahikire Decentralisation in Uganda today: Institutions and possible outcomes in the context of human rights (ICHRP working paper) (2002) 8.
9 Adopted 27 June 1981, OAU Doc CAB/LEG/67/3 Rev 5, (1982) 21 International Legal Materials 58; C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2010) 29, entered into force 21 October 1981.
10 Art 30 African Charter.
11 H Hoffschulte 'The UN Guidelines on Decentralisation and the Strengthening in Local Authorities' in B de Villiers (ed) Review of provinces and local governments in South Africa: Constitutional foundations and practice (2008) 107-127.
12 The All-African Ministerial Conference on Decentralisation and Africa: Decentralisation and local democracy (AMCOD) 'African Ministers choose Yaounde their headquarters' http://allafrica.com/stories/201010040896.html (accessed 7 October 2010).
13 The United Cities and Local Government in Africa (UCLGA); see their website http:// www.uclgafrica.org (accessed 8 October 2010).
14 Hoffschulte (n 11 above) 108-116.
15 ICHRP (n 3 above) 19-31.
16 ICHRP Local government and human rights: Doing good service (2005) 81-86.
17 Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with art 27.
18 Council of Europe 'European Charter of Self-Local government' European Treaty Series 122.
19 Paras 4 & 5 of the Preamble to the Charter.
20 Eg, sec 154 of the Constitution of the Republic of South Africa provides for 'involvement of communities and community organisations in matters of local government' as one of the objects of local government.
21 Arts 1(1) & 25 of the Convention protect the right to participation in government through elections and also freedom to freely determine and pursue their political development.
22 Art 13 African Charter.
23 An appropriate example is South Africa; sec 40(1) of the Constitution provides that '[i]n the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and related'.
24 Forum of Federations 'Background paper on the place and role of local government in federations' Cities and Federalism Conference, Rio de Janeiro, Brazil, 6 and 7 May 2002 (prepared by Prof Nico Steytler, Community Law Centre, University of the Western Cape).
25 Steytler (n 24 above) 1-2.
26 C Bosire 'Local government and human rights in Africa: Forging the necessary institutional links' (2010) 12 Local Government Bulletin 23-24.
27 Sch 5 of the Constitution of South Africa on 'Functional areas of exclusive legislative competence' (Part A).
28 Art 17(2) states that '[e]very individual may freely take part in the cultural life of his community'.
29 See generally C Murray & SA Nakhjavani 'South Africa' in H Michelmann (ed) A global dialogue on federalism: Foreign relations in federal countries (2009) 212-239.
30 N Steytler 'Cross-border relations of South African provinces' in Nomos Verlagsgesellchaft External relations of regions in Europe and the world (2003) 247.
31 As above.
32 Steytler (n 30 above) 249.
33 J Pearsall (ed) The new Oxford dictionary in English (1998) 1851, quoted in L du Plessis '"Subsidiarity": What's in the name for constitutional interpretation and adjudication?' (2006) 2 Stellenbosch Law Review 207 208.
34 For a discussion on the meaning and distinction of the different modes of the subsidiarity, see Du Plessis (n 33 above) 209; J de Visser 'Institutional subsidiarity in the South African Constitution' (2010) 21 Stellenbosch Law Review 90-115.
35 De Visser (n 34 above) 91.
36 Du Plessis (n 33 above) 209-210.
37 See Preamble to the European Charter on Self-Local Government (n 18 above).
38 De Visser (n 34 above) 98.
39 As above.
40 De Visser (n 34 above) 99.
41 See generally WO Oyugi 'Decentralisation for good governance and development: The unending debate' (2000) 21 Regional Development Dialogue 3.
42 ICHRP (n 3 above) 39.
43 See eg N Steytler 'One-party dominance and the functioning of South Africa's decentralised system of government' in R Hrbek (ed) Political parties and federalism: An international comparison (2004) 159.
44 R Southall & G Wood 'Local government and the return to multi-partyism in Kenya' (1996) 95 African Affairs 504.
45 J Namutebi & C Bekunda 'House passes Kampala takeover Bill' The New Vision 4 November 2010 http://www.newvision.co.ug/D/8/13/736999 (accessed 4 November 2010).
46 Ethiopian Review 'Ethiopia: Addis Ababa city administration to regain control of police commission' http://www.ethiopianreview.com/articles/2165 (accessed 27 April 2009).
47 Ahikire (n 8 above) 2.
48 Ahikire (n 8 above) 8.
49 S Makara 'Decentralisation and urban governance in Uganda' unpublished PhD thesis, University of the Witwatersrand, 2009.
50 ICHRP (n 3 above) 19-31.
51 These include anglophone Africa (former British colonies); francophone Africa (former French colonies); lusophone Africa (former Portuguese colonies); and the Arab countries in the North.
52 UCGLA Memorandum of the United Cities and Local Governments of Africa (UCLGA) to the African Union (AU) presented by the presidency of the UCLGA to His Excellency the Honourable President Olusegun Obasanjo, GCFR, President of the Federal Republic of Nigeria and Chairperson of the African Union in Abuja, Nigeria, 1 November 2005.
53 AU '12th ordinary summit of the AU Heads of State and Government ends today in Addis Ababa' (press release 43/2009).
54 Hoffschulte (n 11 above) 113-118.
55 Hoffschulte 113.
56 Hoffschulte 114.
57 Hoffschulte 113.
58 J de Visser Developmental local government: A case study of South Africa (2005) 26.
59 De Visser (n 58 above) 27 notes that it not clear who coined the term and when. However, he further notes that '[a]t the opening of the Africities Conference 2000, the following remark was made by the Secretary-General of the Union of African Towns, Mr Badreddine Senoussi: "Globalisation should allow local authorities to be the speakers of the people in addressing irregularities."'
60 De Visser (n 58 above) 27.
61 Ahikire (n 8 above) 2.
62 As above.
63 ICHRP (n 3 above) 37-39.
64 ICHRP (n 3 above) 37.
65 As above.
66 As above.
67 Hoffschulte (n 11 above) 110-111.
68 As above.
69 Hoffschulte 110-111.
70 Hoffschulte 110.
71 Hoffschulte 114.
72 Hoffschulte 109.
73 Hoffschulte 113.
74 (2000) AHRLR 72 (ACHPR 1995).
75 n 74 above, para 4.
76 As above.
77 Communication 276/2003.
78 Baringo and Koibatek County Councils.
79 Endorois case (n 77 above) 159.
80 Endorois case (n 77 above) 178.
81 African Commission Report Promotional Mission to the Republic of Mali 9-18 April 2004 9-10.
82 UCGLA (n 52 above).
83 The three institutions that were merged were the African Union of Local Authorities (AULA), Union de Villes Africaines (UVA) and the African Chapter of the Unao dos Ciudades Lusofono Africana.
84 UCGLA (n 52 above).
85 See http://www.uclga.org/pages/content/?&language=EN&Id=19 (accessed 2 November 2010).
86 As above.
87 Assembly of the AU Opening Speech by His Excellency President Olusegun Obasanjo, President of the Federal Republic of Nigeria, Chairperson of the AU at the 5th ordinary session of the AU Assembly, Sirte, Libya, 4 July 2005.
88 As above.
89 Hoffschulte (n 11 above) 113.
90 As above.
91 UCLG has its headquarters in Barcelona and commands presence in 136 of the 191 member states of the UN. Over 1 000 cities in over 95 countries across the world are direct members and also boast 115 national local government associations representing virtually all the existing local government associations.
92 Art 4, para 4.10 of the Constitution of the United Cities and Local Government Association (as amended by the UCLGA Extraordinary General Assembly Kopanong Resort and Conference Centre, Johannesburg, South Africa, 18 September 2008).
93 During the conference, papers were presented on women's rights in local government in Uganda and Zimbabwe.
94 See the website http://www.ealga.org for more information (accessed 9 October 2010).
95 As above.
96 See UCLGA website http://www.uclga.org/pages/content/?language=EN&Id=26 (accessed 3 November 2010).
97 AMCOD (n 12 above).
98 See report by the United Nations Public Administration and Development Programme Ministerial Conference on Leadership Capacity Development for Decentralised Governance and Poverty Reduction in Africa and 'All-Africa Ministerial Conference on Decentralisation and Local Government (AMCOD), held at Palais des Congres, Yaounde, Cameroon, 3-4, for detailed information on the forums and activities that led to formation of the AMCOD.
99 P Bidjocka 'Decentralisation: Experts deliberate on working document' CRTV 30 September 2010 http://www.crtv.cm/cont/nouvelles/nouvelles_sola_fr.php7idFiel d=8002&table=nouvelles&sub=national (accessed 3 October 2010).
100 AU '12th ordinary summit of the AU Heads of State and Government ends today in Addis Ababa', press release 43/2009.
101 President of the UCLGA, Tarayia Ole Kores, speaking during the extraordinary session of AMCOD on 30 September 2010; see E Kendemeh 'Africa: Decentralisation - African Ministers choose Yaounde their headquarters' http://allafrica.com/ stories/201010040896.html (accessed 5 October 2010).
102 Adopted during the 'Leadership Capacity-Building Workshop for Local Governance and Service Delivery in East African Community' facilitated by UNDP held at the Commonwealth Resort Munyonyo Hotel, Kampala, Uganda, 5-6 March 2009.
103 Preamble and main text of the Declaration focused on achievement of MDGs.
104 CLGF 'Time for local democracy, the Aberdeen Agenda: Commonwealth Principles on Good Practice for Local Democracy and Good Governance', adopted during the general meeting of the CLGF, convened in Aberdeen, Scotland on 18 March 2005, following the Third Commonwealth Local Government Conference Deepening Local Democracy, 15-17 March 2005, attended by over 46 countries, including over 20 ministers with responsibility for local government.
105 See Declaration of SADC Local Government Ministers Meeting, held at Sheraton Hotel, Pretoria, South Africa on 29 April 2010.
106 IMC Chombo 'Speech by the Honourable Minister of Local Government, Rural and Urban Development' in J de Visser et al (eds) Local government reform in Zimbabwe (2010) xi.
107 African Commission 47th ordinary session 12-26 May 2010, Banjul, The Gambia http://www.achpr.org/english/_info/47th%20Ordinary%20Session.html (accessed 10 October 2010).
108 A periodic event organised by UCLGA that brings together the UCLGA membership and other stakeholders on local government in the region. The last Africities Conference was held in Marrakech, Morocco, from 16-20 December 2009.
109 Art 62 African Charter.
110 Community Law Centre 'South Africa: State of State reporting under international human rights law' reader prepared for the seminar on Promoting constitutional rights through international human rights law: The state of South Africa's state reporting held in Cape Town, South Africa, 22 September 2010.
111 K Quashigah 'The African Charter on Human and Peoples' Rights: Towards a more effective reporting mechanism' (2002) 2 African Human Rights journal 280-283.
112 Arts 47-59 African Charter.
113 Endorois case (n 77 above) 159.
114 Cap 265 Laws of Kenya.
115 Sec 115(1) of the immediate former Constitution of Kenya states that '[a]ll trust land shall vest in the county council within whose area of jurisdiction it is situated'. Sub-sec (2) further provides that '[e]ach county council shall hold the trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under African customary law for the time being in force, and applicable thereto, be vested in any tribe, group, family or individual'.
116 n 80 above.
117 Endorois case (n 77 above) 31-32.
118 African Commission (n 81 above) 9-10.
119 BR Dinokopila 'Beyond paper-based affiliate status: National human rights institutions and the African Commission on Human and Peoples' Rights' (2010) 10 African Human Rights Law journal 27.
120 ICHRP (n 3 above) 41.