The Centre for Human Rights, Faculty of Law, University of Pretoria in partnership with the University of Antwerp, Belgium, conducted its annual Advanced Human Rights Course (AHRC) on the Right to Development in Africa. The course was held from the 15th to 19th of August 2022 in a hybrid format with physical participants at the University of Pretoria’s Future Africa Campus (Future Africa), and about 55 virtual participants joining via Zoom from all over the world. The Centre and its partners also hosted a two-day round table dialogue on the right to development on the 19th and 20th of August 2022 at Future Africa.
The course and roundtable dialogue were facilitated by leading experts on the subject, including members of the UN Expert Mechanism on Right to Development, (Dr.Bonny Ibhawoh, Prof. Koen De Feyter and Prof. Mihir Kanade), members from the African Commission on Human and Peoples Rights (African Commission), including Dr. Chairman Okoloise, senior legal officer African Commission and Dr. Solomon Derrso, African Commission Working Group on Extractive Industries, Environment and human Rights Violations in Africa, leading scholars from the University of Antwerp and other regional experts working on the subject including, Prof. Serges Kamga, Dr. Carol Ngang, Dr. Bright Nkurumah, Dr. Rita Ozoemena and Ms. Asha Ramgobin among others. Other facilitators included human rights advocates from Human Rights Development Initiative (HRDI), Tax Justice Network Africa (TJNA), Initiative for Social and Economic Rights (ISER), African Forum and Network on Debt and Development (AFRODAD) and other civil society actors, legal practitioners, researchers and academicians.
The participants in the course comprised of members from national human rights institutions, civil society actors, human rights advocates, legal practitioners, including some from the African Commission, academicians and post graduate students undertaking LLM and PhD studies both at the University of Pretoria and the University of Antwerp. This year the course was focused on various pertinent issues around the right to development which made for an engaging and impactful course. One facilitator who has been facilitating this course for the last six years, described the course aptly stating that “this year’s course was exceptional thanks to its being impact-driven, content-loaded and attentive to detail.”
Over the course of the 5 days, participants were introduced to different aspects and conceptual framing of the right to development internationally and specific focus areas of the right in Africa including the foundations of and the conceptual framework of the right to development within the United Nations norms and institutions which was facilitated by Prof Koen De Feyter, Professor of Law at the University of Antwerp and Member of the UN Expert Mechanism on the Right to Development. The students were also introduced to the pressing issue of ‘Illicit Financial Flows from Africa and their impact on Africa’s development agenda. The topic highlighted the importance of the principle of solidarity and the duty to cooperate in international law to curb IFFs, which resources could be redirected into national development agendas. The participants also engaged in critical analyses and discussions on three leading African Commission and African Court cases that touched the subject of right to development including the decisions of the African Commission in the Endorois and SERAC cases and the African Court decision in the Ogiek case. A key element interrogated in the cases was the concept of ‘people’; and the importance of participation by communities in the development process as a crucial element to the realisation of the right to a people centered development.
The subject of human rights-based approaches to development (HRBAD) remained a key area within the entire course discourse. Prof Wouter Vandenhole from the University of Antwerp, Belgium, as in previous years, again led the discussion laying the ground on the principles of HRBAD and the key elements of meaningful and effective participation, accountability, non-discrimination and empowerment, all linking to human rights norms. Ms. Nona Tamale facilitated the session on foreign debt and the right to development shading more light on the debt predicament of most African countries. She highlighted the impact that private debt has on the realisation of the right to development in Africa and provoked participants to think of more sustainable financing for development on the continent.
The week-long AHRC was concluded with a debate on whether we need a Convention on right to development and whether the current draft treaty will address key challenges in the right to development discussion. The participants also reviewed the treaty on its conformity to specific principles around, self-determination, indigenous people’s rights, gender, IFFs and Debt among others and how effective the implementation mechanism in the draft treaty is towards the realization of the right to development.
The Roundtable Dialogue on the Right to Development - August 19-20, 2022
The Advanced Human Rights Course (AHRC) on the Right to Development in Africa was culminated by a Roundtable Dialogue held from 19- 20 August 2022. The objective of the roundtable was to create a platform to interrogate critical issues around the right to development and design initiatives for strategic engagements. These issues included; human rights-based approaches to development and the conflict of priorities, reclaiming public services for sustainable and inclusive development, tax justice, debt financing and development, illicit financial flows from Africa and its impact on the continents’ development agenda, and climate change and its impact on development and the African Continental Free Trade Area (AfCFTA).
The roundtable dialogue had experts from the field including members of the UN Expert Mechanism on right to development, Law Professors from the University of Antwerp, researchers and legal practitioners from the African Commission on Human and Peoples, National Human Rights Institutions, civil society and human rights advocates from Tax Justice Network Africa (TJNA), African Forum and Network on Debt and Development (AFRODAD), the Initiative for Social and Economic Rights (ISER) and other academicians among others.
The roundtable dialogue started with a conversation around the conflict of priorities that exist in trying to ensure a human rights-based approach to development. To understand the conflicting priorities, it was important to answer the question of whether the exceptionalism principle applies in HRBAD prioritising some human rights over others. The discussion also assessed the conflicts between human capital development, economic development and environmental and social elements with the right to development. The principle of indivisibility of human rights was reiterated as enshrined in Article 6 of the Draft Convention on the Right to Development that provides that human rights including the right to development are “equally important.”
While looking at the different dimensions of the right to development, the need for reclaiming public services for inclusive and sustainable development was interrogated. This discussion comes prudently at a point where the gaps in public services such as health and education were exposed during the Covid-19 pandemic. The dialogue emphasised the need for accessible, affordable and quality public services to enhance and ensure inclusive and sustainable development for all. The session also shared brief insights on the African Commission Draft General Comment on the Obligation of States to regulate private actors involved in the provision of social services.
The role of philanthropy towards sustainable development–underscoring the importance of philanthropy in ensuring sustainable development, independent of political and economic pressures was also discussed. The final day of the roundtable dialogue shifted the conversation to the African Continental Free Trade Area (AfCFTA) and its implications on the realisation of development in Africa and addressing inequalities. Deeper conversations during the dialogue looked at whether the economic growth expected to emanate from the AfCFTA would translate to development and better standards of living in Africa.
Further discussions around debt financing and the effect of Africa’s debt burden on its development Agenda were examined. It was agreed that the various power dynamics between both public and private lenders and African states may have a detrimental effect on Africa’s development agenda. Participants agreed that there is a need to move towards more sustainable debt financing which includes both sustainable lending and sustainable borrowing that achieves a HRBA to the right to development.
Another topical and critical issue addressed in the roundtable dialogue was tax justice, illicit financial flows and the right to development. It is important to note that Africa loses more money by illicit financial flows through commercial transactions than it receives in aid. Participants were able to make an assessment of the various institutional structures and systems that encourage and/or allow illicit financial flows. At a domestic level it was important to assess the tax laws, banking laws as well as company laws, while at a regional level looking at regional and economic communities and going further to look at the human rights systems that exist at an international level. The conversation further went to look at the challenges that African states face when it comes to taxation of multinational corporations, specifically looking at the difficulty faced in relying on taxation as a sustainable avenue of development financing because of illicit financial flows of money out of Africa by means of tax injustice and tax avoidance.
It was agreed that in order to achieve tax justice and reduce illicit financial flows out of Africa with the aim of realising the right to development, it is imperative to develop national, regional and global interventions—all in solidarity and underpinned on the duty to cooperate. At a national and regional level ensuring that tax agreements such as double tax agreements are structured in such a way that deters tax avoidance and tax evasion. At a global level, the solution lies in reforming the global taxation systems. One of the prominent suggestions throughout the session was that of a minimum tax rate for corporations throughout Africa without any exceptions for any industries such as the mining industry. Participants acknowledged that to give effect to any strategy to realise the right to development, it is necessary for Africa to unite and bridge the gap between African states. The general consensus was that there is a need for African countries to be involved in and effectively participate in the decision-making processes in global tax systems.
Draft report findings were shared from the research study assessing the role the African Development Bank (AfDB) has played towards the recovery and response measures to the COVID-19 pandemic in Africa. The Centre for Human Rights, University of Pretoria in 2021 conducted a study that examined the loans given by the African Development Bank (AfDB), what the loans were spent on as well as accountability and the socio-economic effects of these loans. The findings of the study were used as the foundation for the discussions around development financing. This dialogue brought about several meaningful comments from participants on how both financial institutions such as the African Development Bank (AfDB) and states can ensure that aid programs ensure the realisation of the right to development in Africa. One such comment is that there is an imminent need for African states to be involved in the activities of the Organization for Economic Cooperation and Development (OECD) to ensure representation of the African context in decision making. Global and regional financial institutions were encouraged to engage civil society in decision making to ensure adequate compliance with environmental and social economic safeguards. The importance of transparency and effective monitoring and evaluation in all processes of such aid programs was also highlighted.
The roundtable also gave insight into climate change and its relationship with development. It was firstly important for participants to understand the relationship between climate change and human rights while looking at specifically the right to development. Participants agreed that the issue of climate change has become a climate emergency, evidenced by the extreme weather events and conditions. There was a discussion around how climate change impacts the realisation of human rights and right to development. It was important to acknowledge that development can lead to climate change and that global development over the years has contributed to the current climate change crisis. The current climate position requires states, especially African states which are most affected by climate change despite contributing the least to the crisis, to respond, adapt and minimise the effects of climate change. Participants also looked at the disparities that exist in terms of climate financing between states, with states most in need of financing, receiving the least amount of climate financing. It was further noted that the climate financing is mostly in the form of debt instruments which increase the debt burden of states. Participants assessed how each of these factors affect the realisation of the development. Finally, conversations around how Africa can ensure the right to development in a manner that is adaptive, responsive and mitigative were had. It was agreed that there is a need for engagement with communities and participation on development plans. Further the need for strong national and regional policy, plans and strategies that take bottom-up approaches was emphasised.
At the end of the roundtable dialogue, participants made some key recommendations going forward, including the need for human rights impact assessments of the AfCFTA and building capacity of duty bearers to conduct impact assessments, strengthening whistle blower protection frameworks to enable individuals report on matters of IFFS, tax evasion and avoidance, building strong institutions to reclaim public services, developing tools and strengthening systems to operationalise the right to development and rethinking development from this theoretical technical perspective to understanding that it’s a political process and hence designing initiatives to navigate the different corridors of power at work among others.
The Centre for Human Rights and the University of Antwerp are thankful to all the presenters for their time and contributions to the success of the course. The Centre also gratefully acknowledges the financial support of the General Representation of the Government of Flanders in Southern Africa as well as the institutional support from the Centre’s other partner organisations.
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Program Manager Business and Human Rights
Centre for Human Rights, University of Pretoria