Opinionista • Paul Hoffman • 20 September 2020
South Africa is not immune to these global trends. The disruptiveness of the EFF, led by fascist firebrand Julius Malema, is well documented. Xenophobia, or perhaps more accurately Afrophobia, is rife. The ability of the state to respect, protect, promote and fulfil the rights guaranteed to all in the state-of-the-art Bill of Rights that is Chapter Two of the Constitution is questionable after the ravages of State Capture in the Zuma era and the economic side effects of the pandemic currently sweeping the world, bringing hubris to governments everywhere.
South Africa has close connections to the establishment of the UNO and the adoption of the Universal Declaration of Human Rights. The ANC, then a liberation movement, sent a delegation and enjoyed great success in turning the world against apartheid. The Allied powers that were victorious in World War 2 saw off the threat to human rights posed by the Axis forces of Germany and Japan. The focus on protecting human rights that originated in the holistic thinking of Jan Smuts (then SA prime minister and a field marshall in the Allied forces) and others was perhaps the major and potentially the most lasting feature of the deliberations of the founders of the UNO.
Certainly, the UNO political structure has become dated with its five permanent members of the Security Council (none of them African, none of them Muslim), their veto powers and the lesser status of the General Assembly. These vestiges of the spoils of victory in World War 2 have become antiquated in the world order that has developed over the last 75 years.
The purpose of setting up the UNO was to secure peace and stability in the world. The horror of war, the death and suffering that is engendered by war and most of all the indignity of violent conflict impelled the representatives of all nations to seek a better world. The thinking behind the establishment of the UN Charter in the course of 1945 is revealed in its Preamble:
- To save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind; and
- To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; and
- To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and
- To promote social progress and better standards of life in larger freedom.
One of the first projects of the UNO was to draft and agree on the terms of the Universal Declaration of Human Rights. The text was prepared by representatives with different legal and cultural backgrounds from all regions of the world. The Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into more than 500 languages.
The Preamble of The Declaration is a vivid reflection of the philosophy that motivated its adoption:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
“Whereas it is essential to promote the development of friendly relations between nations,
“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
“Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
“Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge,
“Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”
It can be seen from these fine words that while tyranny and oppression are singled out as enemies of human rights, there is no express reference to corruption as a factor in the project of rolling out universal human rights so as to promote equality and dignity. Invoking the protection of the rule of law is as close as it gets. The need to address this gap is now pressing. The current levels of corruption are such that they present a threat to peace and security that ought to be countered. According to some estimates the level of corrupt activity in the world accounts for losses of more than $1-trillion every year.
Maja Groff and Joris Larik of the Stimson Centre have advocated changes in a paper published on 14 September 2020 to mark the UN75 milestone. Its abstract is instructive:
“A key strategic measure of the international community needed over the next decade is the enhancement of the international rule of law in order to reinforce multilateralism and enhance global governance capabilities. A project to significantly upgrade the existing international legal architecture should be launched upon the occasion of the UN’s 75th anniversary, making good on core UN Charter and related international commitments.
“In this paper, we propose an ambitious, yet realisable ‘International Rule of Law Package’ of reforms meant to significantly enhance the integrity of the international governance system. Key international justice institutions – the International Court of Justice, the International Criminal Court, and the UN’s Human Rights architecture – should be strengthened in terms of both their jurisdiction and effectiveness.
“In addition, the UN75 anniversary represents an opportunity to pave the way for new institutions to fill existing institutional gaps. Hence, we support the creation of an international anti-corruption court as well as an international judicial training institute to ensure the requisite capacity, skills, and knowledge across international courts.
“The international community, on this historic occasion, should begin focused discussion on such an international rule of law reform package with the goal of modernising and making more robust and legitimate the core international governance architecture, fitting it to the range of global challenges it now confronts.”
As the President of South Africa, Cyril Ramaphosa currently also leads the African Union. It is appropriate that he give attention to the suggestions made in the paper in the African context as he is already championing the strengthening of institutions at the domestic level in accordance with the tenets of UN Sustainable Development Goal #16. The rapid increase in the population of Africa, both in gross numbers and as a proportion of the world population, and its increasingly important role in world affairs, justify a well-focused intervention of the kind presaged by Groff and Larik. DM