Engaging with the Commonwealth

Second Submission of the Commonwealth Human Rights Initiative (CHRI) to the High Level Review of the Future of the Commonwealth, June 2001 (for 9-10 July Meeting in Singapore)

This second submission by the CHRI has a bearing on the following aspects of the High Level Review Group’s mandate as provided by the Chair of the Review:

• the role of the Commonwealth in the Twenty First century;
• the overall role and direction of the Commonwealth and its focus;
• the promotion of democracy, human rights and good governance, including further consideration of the future mandate of the Commonwealth Ministerial Action Group (CMAG);
• civil society and the Commonwealth;
• the procedures and practices at the Commonwealth Heads of Government Meetings (CHOGMs);
• Commonwealth Ministerial Meetings, and;
• promotion and enhancement of the image of the Commonwealth.

Our recommendations as regards the expansion of the remit of CMAG have particular relevance to Working Group 1 on the Commonwealth’s political role, chaired by H.E. Professor Pang Eng Fong. Our recommendations as regards the establishment of a Commonwealth High Commissioner for Human Rights, the consolidation of the Human Rights Unit (HRU), and as regards participation in the mechanisms of the Commonwealth are particularly relevant to the work of Working Group 3, chaired by H.E. Cheryl Carolus, on Commonwealth Governance and Structures.

A. Centralising Human Rights in the Mechanisms of the Commonwealth

For ten years we have been advocating for the centralization of human rights in the mechanisms of the Commonwealth. Our position is that human rights have always underpinned the Commonwealth. For many the Commonwealth represents the triumph of self-determination over colonialism. Furthermore, the association was at the forefront in the fight against racism in South Africa and Rhodesia. In 1991, our very first report - Put Our World To Rights – made just prior to the Harare Commonwealth Declaration, advocated a human rights policy for the Commonwealth

“A human rights policy will enrich the Commonwealth. It will re-affirm the moral basis of this community of nations and add to its prestige both among its members and outside. The stage is now set for new commitments and initiatives by the Commonwealth.”

In our 1999 report on the Commonwealth Secretariat’s Human Rights Unit (HRU), Rights Must Come First, it was asserted that “the Commonwealth is about human rights or it is about nothing

We reject the contention that the Commonwealth is not mandated to protect human rights for two main reasons

• Our interpretation of the role of the Commonwealth can be justified with reference to pledges made by the Commonwealth itself in the CHOGM Communiqués. Arguably the most important of these was made in Harare in 1991 where the Commonwealth pledged to “work with renewed vigour towards…fundamental human rights” (paragraph 9). This commitment to human rights has been reiterated many times in Communiqués over the years. In the 1993 Cyprus Communiqué human rights were mentioned 13 times, and the Heads of Government “noted with satisfaction the Secretariat’s efforts to promote human rights in all its aspects…They asked the Secretariat to provide for increased allocations to that area as much as available resources would allow”. Most recently, in the 1999 Durban Communiqué, the Heads of Government “renewed their commitment to the Commonwealth’s fundamental political values of…human rights”.
• Members of the Commonwealth have pledged to promote and protect human rights through signing binding international conventions. This does not simply mean that human rights must be promoted and protected within member countries. Commonwealth member states have accepted the international human rights normative framework and this entails the commitment to human rights and the adoption of the rights-based approach by all the organs of the state, at all levels, including those working, negotiating and voting in international forums – the UN, the IMF and, for our purposes, the Commonwealth.

Despite the statements, it is clear that even taking into account the many advances over the last ten years, the Commonwealth is not doing enough to implement these pledges.

The common excuse is that “the United Nations and its bodies are best placed to investigate and remedy breaches of rights and that the Commonwealth, with no comparative advantage in these areas, is not best placed to advance the global agenda by duplicating the work of other organisations”[1]. This misapprehends the nature of our contentions. Firstly, the UN, other regional bodies and the non-governmental sector do indeed undertake much investigative and protective work in the field of human rights. However, these bodies are under funded and the Commonwealth can provide some much needed assistance to them in order to advance the global human rights agenda. Furthermore, the Commonwealth should build upon, not duplicate, the work of these other bodies. The Commonwealth should take a distinctly Commonwealth view, tailoring the information provided from these other sources to its needs, and filling in the gaps where necessary.

The Commonwealth must demonstrate publicly its commitment to human rights in order to live up to the rhetoric of the Heads of Government. In practical terms this entails the development of new machinery for the implementation of these pledges, as well as improvements to that which already exists. Without this, Commonwealth commitments to further human rights are mere words on paper.

1. The expansion of the remit of the Commonwealth Ministerial Action Group (CMAG)

We have repeatedly advocated for an expansion of the working remit of CMAG, first in Over a Barrel, our report to the 1999 CHOGM, and more importantly, in a submission to the 2000 meeting of Senior Officials reviewing the future of the CMAG

1. CMAG was established in 1995 by Heads of Government in the Millbrook Commonwealth Action Programme on the Harare Declaration. Paragraph B3 of the ‘Plan of Action’ authorizes CMAG to take appropriate action “when a member country is in violation of the Harare Commonwealth Declaration, and particularly in the event of an unconstitutional overthrow of a democratically elected government”. This has led CMAG to deal formally only with cases involving a military takeover of a democratically elected regime – Nigeria, Sierra Leone, the Gambia, Pakistan and Fiji. However, paragraph C4 of the ‘Plan of Action’ specifies that CMAG was established to “deal with serious or persistent violations” of the Harare Principles which include, inter alia, fundamental human rights. It is our contention therefore, that in failing to deal formally with “serious or persistent” violations of fundamental human rights, CMAG is making an unnecessarily narrow interpretation of its role and is not fulfilling its true working remit. This contention is justified further since, in paragraph 15 of the Edinburgh Communiqué, the Heads of Government specified that CMAG should implement measures to promote the respect for human rights in Nigeria. CHRI therefore calls upon the High Level Review Group to expressly confer a wider remit upon CMAG and in particular that:

   1. CMAG’s mandate should expressly empower it to deal with “persistent or serious” violations of democracy, democratic institutions and processes which reflect national circumstances, the rule of law, the independence of the judiciary, just and honest government and fundamental human rights (i.e. the Harare Principles).

   2. CMAG should be proactive within its remit, as well as acting upon the advice of the Commonwealth Secretary-General and a Commonwealth High Commissioner for Human Rights (CHCHR – see below).

   3. With the assistance of the CHCHR, CMAG should rigorously investigate the human rights record of prospective members and must strictly apply the membership criteria adopted in paragraph 20 of the 1997 Edinburgh Communiqué.

   4. CMAG should signal publicly its intention to work openly with Commonwealth NGOs, civil society and the unofficial Commonwealth organizations working in the field of human rights.

2. The establishment of a Commonwealth High Commissioner for Human Rights (CHCHR)

The CHRI first launched the idea of establishing a Commonwealth High Commissioner for Human Rights (CHCHR) in Act Right Now, our report to the 1993 CHOGM. This concept has been refined over the years by the CHRI[2]. The establishment of such an office would provide renewed focus, authority and coordination to the Commonwealth’s work towards upholding the Harare Declaration – the work of CMAG, the good-offices work of the Secretary-General, election observation missions and workshops etc. The CHCHR, would also be well-placed to liase with the UN and other regional bodies to ensure that duplication is avoided. The principal characteristics of the CHCHR would be as follows:

• The CHCHR should exist as an autonomous authority within the Commonwealth Secretariat and should report to the Commonwealth Secretary-General;
• He or she should be endowed with Deputy Secretary-General status;
• He or she should normally be a high profile internationally credible figure, appointed in his or her individual capacity as an international expert;
• He or she should be appointed by the Chair of CHOGM, the Chair of the Commonwealth Law Ministers and the Commonwealth Secretary-General, by consensus;
• He or she should be appointed for a four year term;
• Budgets should be specifically allocated for his or her work;
• He or she would liase with opposite numbers in the UN, regional organizations and in national governments;
• He or she should draw upon the knowledge and expertise of unofficial Commonwealth organizations working in the field of human rights and national human rights institutions in the Commonwealth;
• He or she should investigate violations of human rights, should recommend appropriate redress, should work for the promotion of human rights and human rights education and should provide advice on the promotion and protection of human rights;
• The remit of the High Commissioner should cover civil, political, social, economic and cultural rights, including development, environment, women’s and children’s rights;
• He or she should provide well-qualified adjudication in the application of membership and suspension criteria, report on his or her work annually, make oral presentations, engage in fact-finding missions and present findings, warn publicly and privately when human rights problems are growing in any region and offer support to the Secretary-General good offices role;
• He or she should provide advice and recommendations to the Departments of the Commonwealth Secretariat - including the Human Rights Unit - the CMAG and member governments.

3. Consolidation of the Role of the Human Rights Unit (HRU)

In its 1999 report, Rights Must Come First, the CHRI made a comprehensive assessment of the role of the Human Rights Unit (HRU) in implementing the pledges made by Heads of Government. Through its pledges, the establishment of CMAG and the work of the Secretary-General in his good offices role, the Commonwealth has indeed begun to act on its rhetoric in the area of human rights. However, there is a need for some consolidation of the existing machinery. This entails additional commitment and additional funding by Commonwealth member states. The HRU is best placed to assist with this consolidation. Unfortunately, the HRU has been the main victim of the downsizing, which has taken place recently in the Commonwealth Secretariat, robbing the Secretariat of its main resource to provide value in the human rights aspects of its work. This, more than anything, sends a signal that human rights are not a priority within the Commonwealth.

The mandate of the HRU is (a) to promote human rights within the Commonwealth and (b) to ensure that in the Secretariat itself due account is taken of human rights considerations in the work of all its divisions. It is our contention that this mandate is not being fulfilled and, in any case, is too restrictive.

CHRI envisages the role of the HRU as follows:

The HRU is already mandated to assess how account is taken of human rights considerations in the work of the divisions in the Commonwealth Secretariat. This entails:

• Maintaining consistency of treatment of human rights issues by the different divisions in the Secretariat;
• Assessing the human rights impact of Commonwealth Secretariat activities, and;
• Ensuring that Commonwealth Secretariat staff have current knowledge of human rights issues.
• The HRU should be a mini-Secretariat to CMAG and the Commonwealth High Commissioner for Human Rights;
• The HRU should act as an early warning system for the Commonwealth Secretary-General in his good offices role;
• The HRU should offer advice to member governments;
• The HRU should continue to co-operate with all divisions in the Secretariat on common projects;
• The mandate of the HRU should be expanded so that it can take a more proactive stance vis-à-vis human rights. The Commonwealth Secretariat believes that “there is currently no consensus that the Commonwealth engage in investigative or enforcement action”[3]. We accept that it is not desirable for the HRU to engage in the investigation of specific violations. However, the HRU should be more proactive in its human rights work through monitoring and reporting on the performance of Commonwealth member states in relation to their human rights obligations. If the HRU is to be mini-Secretariat to CMAG and a CHCHR (if established), it will need to be able to be more proactive in order to provide for the information needs of these bodies.

In order for the HRU to fully perform this role its status should be enhanced and its funding and staffing needs to be reassessed on an urgent basis.

As we asserted in Rights Must Come First, the HRU should not be located in other divisions but should be free-standing, like the Strategic Planning and Evaluation Unit (SPEU).The Secretariat claims that human rights have been mainstreamed within its divisions which negates the need to have a separate division. There is no evidence that this has, in fact, taken place. In any case, in order to fulfil part (a) of its mandate, even with the mainstreaming of human rights, it is essential that consistency of approach be maintained throughout the Secretariat. This can only be achieved by having a distinct unit with the mandate to assess and monitor the mainstreaming throughout the Secretariat. Ad hoc, ‘inter-divisional task-forces’[4] cannot provide an adequate basis for the performance of the necessary Secretariat-wide assessment and monitoring function. Furthermore, the HRU needs to be accessible, not only to departments within the Secretariat but for assistance to external bodies, CMAG, CHCHR, the Commonwealth Secretary-General and Commonwealth governments. This accessibility can only be provided if the Unit itself is separate.

The downsizing of the HRU must be stopped. The rhetoric of the Heads of Government must be backed up with hard cash. Adequate funds must be made available to the HRU so that it can perform all of its duties effectively. A free-standing HRU should obviously have a separate annual core budget which should be supplemented through funding from governments, private foundations, bilateral and multilateral agencies. The HRU should be staffed with human rights specialists – not necessarily lawyers – but persons with experience in the field of human rights including the non-governmental sector.

B. Enshrining Participation in the Mechanisms of the Official Commonwealth at all levels

CHRI believes that the “the Commonwealth is first and foremost a collection of its peoples”[5]. 10 years on there is little evidence that people are central to the Official Commonwealth. We have repeatedly called for enhanced participation in the mechanisms of the official Commonwealth – the Commonwealth Foundation, the Commonwealth of Learning and, in particular, the Commonwealth Secretariat – by unofficial Commonwealth organizations, including in particular, human rights organizations: “the Commonwealth should seek the active co-operation of human rights activists and non-governmental organizations”[6].

However, we believe that the Commonwealth must go further than this. As we argued above, the Commonwealth member states have accepted the international human rights normative framework, an essential component of which is the right of citizens everywhere to participate in decision-making processes. Participation through voting for Heads of Government at national elections is not sufficient – there must be systematic participation by Commonwealth citizens in all levels of governance, including the mechanisms of the official Commonwealth. The mechanisms of the official Commonwealth must embody human rights and the democratic ethos – the principles of participation, accountability and transparency must underlie all policies, programmes and priorities.

Presently the Commonwealth is examining its own legitimacy and relevance to its peoples – it is reviewing its role for the second time in ten years. If the Commonwealth can publicly signal its commitment to citizen participation in governance, by enshrining participation within its own mechanisms, it will provide the legitimacy for its existence that it is seeking. Furthermore, participation in these mechanisms will promote ownership by Commonwealth citizens, enhancing its standing and relevance amongst them. It is only this which can make the Commonwealth relevant in the future.

It is accepted that part of the unique nature of the Commonwealth is in its various ‘unofficial links’. The Commonwealth’s civil society organizations have provided enduring interest in Commonwealth links, even when the Commonwealth itself has fallen out of fashion. The sustained relevance of the official Commonwealth will therefore be enhanced if it can harness the participation of the Commonwealth’s unofficial organizations.

Finally, justification for asserting that participation should be enshrined in the mechanisms of the official Commonwealth can be drawn from statements of the Heads of Government themselves. In 1964 the Heads of Government instructed officials to consider “the best basis for establishing a Commonwealth Secretariat, which would be available…to assist existing agencies, both official and unofficial, in the promotion of Commonwealth links in all fields”. In paragraph 42 of the 1999 Durban Communiqué, Heads of Government “declared that people-centred development implied that people must be directly involved in the decision-making process”. If the Commonwealth supports citizen participation in principle, then why does it refuse to implement participation in practice, within its own mechanisms?

The Commonwealth Secretariat must espouse an open-door policy. The ‘creep’ towards full citizen participation has already begun. There are developments at many levels: the establishment of the NGO Desk in the Commonwealth Secretariat, accreditation for NGOs at CHOGMs and, most importantly, the development of mechanisms of interaction between Commonwealth Ministers and civil society during meetings. However, participation is not systematic. There are contacts and cooperation at the operational level, but all too often the interaction is dependent upon the personality of the individual concerned and the persistence of the citizen or group attempting the contact. The good practices which have been developed on an ad hoc basis should be embraced and promoted. This could be achieved by a statement of policy which enshrines systematic participation in the mechanisms of the official Commonwealth. This would mainstream participation and would avoid the ad hoc nature of the participation which is characteristic of the past.

CHRI therefore makes the following concrete recommendations to the High Level Review Group:

The Commonwealth Secretariat

1.Commonwealth Secretariat should have a statement of institution-wide policy expressing the duty of the Secretariat to increase interaction with citizens and NGOs. This should specify that the Secretariat must facilitate communication with, and empower and protect NGOs, particularly human rights defenders.

2. On an operational level, the Commonwealth Secretariat has increased the level of cooperation with service provider NGOs; however, NGOs acting as monitors of Commonwealth governments or the official Commonwealth organizations, should also be afforded cooperation and protection. In paragraph 57 of the Cyprus Communiqué, Heads of Government emphasized the “important role played by non-governmental organizations in the area of the promotion of human rights” and “encouraged increased practical co-operation between the Secretariat and NGOs”. In its human rights mechanisms – CMAG, the Commonwealth High Commissioner for Human Rights, and the Human Rights Unit - the Commonwealth should solicit the input of NGOs, civil society and unofficial Commonwealth organizations working in the field of human rights. Furthermore, the Commonwealth Fund for Technical Cooperation (CFTC) funds should include support for advocacy and monitoring exercises.

3. The Commonwealth Secretariat should recognise that the Commonwealth Foundation as the lead agency for accessing the views of Commonwealth citizens. It should strengthen its working relations with the Commonwealth Foundation to make use of its knowledge of the non-governmental community in the Commonwealth, to link potential partners, synergies and initiatives and to facilitate the funding of partner NGOs through the Commonwealth Foundation.

The Commonwealth Foundation

4. The Commonwealth Foundation NGO Forum was established to “enable NGOs to contribute to Commonwealth consultative processes.”[7] The Commonwealth Foundation should be truly consultative and should not simply be a middleman and the Commonwealth Secretariat and the Commonwealth citizen. NGO Forums should be the culmination of deep and wide consultation amongst citizens so that their deliberations truly reflect the views of Commonwealth citizens. This will give the NGO Forum the its legitimacy in claiming equal status with the CHOGM (see recommendation 8(a)).

5. There is enough room for both the Commonwealth People’s Centre and the Commonwealth NGO Forum at CHOGMs. NGO Forums should occur biannually during each CHOGM.

6. Participation in the NGO Forum is tightly controlled. We believe that the dialogue would be enriched if participation in the Forum were more open and NGOs were permitted to obtain funding from different sources.

7. The Commonwealth Foundation should work closely with the Commonwealth Secretariat to assist the latter in making deeper and wider links with the unofficial Commonwealth.

CHOGMs and Commonwealth Ministerial Meetings

8. CHOGMs should embrace the participatory practices developed in Commonwealth Ministerial Meetings and should enshrine participation. These practices should also continue in the Ministerial meetings:

a. The Commonwealth Foundation NGO Forum and CHOGM currently take place as parallel events but are not equal. The status of the NGO Forum should be raised so that it is equal to the CHOGM. The deliberations and recommendations of the NGO Forum should be central to the CHOGM Communiqué. There should be specific points of interaction to facilitate this dialogue amongst equals. This should take place, not just at the CHOGM itself, but in the two years between meetings; for example, the NGO Forum should be involved with setting the agenda of the CHOGM.

b. The process of accreditation for NGOs should be made more transparent. Decisions on accreditation should no longer be taken by the Head of the Political Affairs Division alone, but by a committee. The committee could include, for example, the Head of the Political Affairs Division, the NGO Desk officer, and the heads of the departments relevant to the NGO applying for accreditation. Criteria for accreditation should be public and reasons should be given for denial of accreditation;

c. There are currently heavy restrictions on the movement of NGOs at CHOGM. Certain CHOGM-mandated bodies such as the Commonwealth Local Government Forum (CLGF) are endowed with ‘Special Delegate status’ which permits them to observe at the meeting. At the 2000 Commonwealth Education Ministers Meeting, ‘observer status’ was granted to certain NGOs. However, the Commonwealth should go further than this at both CHOGMs and Ministerial Meetings. Accredited NGOs and their delegations should be permitted to attend the meetings and to make interventions as is common practice at the UN.

d. In order to facilitate participation by Commonwealth citizens in all corners of the world and to enhance the relevance of the association, press access to CHOGMs should be free, as with the 2000 Commonwealth Education Ministers Meeting, and debates in the CHOGMs should be televised on the Commonwealth Secretariat web-site.

[1] 23 March 2000 response by Dianne Stafford (Director of the Legal and Constitutional Affairs Division, Commonwealth Secretariat) to CHRI’s 1999 report Rights Must Come First.

[2] For example in Over a Barrel, our report to the 1999 CHOGM, in Rights Must Come First, our report on the Commonwealth Secretariat Human Rights Unit, in our first submission to the High Level Review Group and most recently, in papers drafted by Richard Bourne, the Chair of CHRI’s Trustee Committee.

[3] 23 March 2000 response by Dianne Stafford (Director of the Legal and Constitutional Affairs Division, Commonwealth Secretariat) to CHRI’s 1999 report Rights Must Come First.

[4] 23 March 2000 response by Dianne Stafford (Director of the Legal and Constitutional Affairs Division, Commonwealth Secretariat) to CHRI’s 1999 report Rights Must Come First.

[5] Put Our World To Rights 1991

[6] p.33, Act Right Now (1993)

[7] “The First Commonwealth Forum for Non-Governmental Organisations”, Jones, p.401.