Role of State towards Protection of Ethnic Minority Rights

Why Ethnicity matters

Ethnicity is the consciousness or awareness or belonging to an ethnic group.1 Many conflicts around the world are motivated by negative ethnicity which has been built among the diverse societies within a particular geographical territory. Ethnic identities are commonly aroused when a group feel like their interests, survival have been threatened. Ethnic-based violent conflicts can wear masks of many factors which cause the conflict hey include, poor governance, marginalization, economic issues, and identity politics.

 

Approaches to Ethnicity

Scholars have propounded theories that sought to explain motivations and forces that result in ethnic conflicts. Ethnicity is a concept that has attracted the attention of researchers from all fields especially peace scholars where they seek to expound the nature of ethnicity and which factors build it. The theories include primordialism, constructionism, and instrumentalism.2 Primordialism explain the deep attachment to a particular group and it is usually built by emotions and perceptions. It asserts the existence of historical hatreds that have been created between groups.3 The second theory is the constructionism which asserts that ethnicity is as a result of how people perceive it, this school of thought further explains that ethnicity created can be attributed to the kind of social change that occurs in the society.4Instrumentalism is where politicians commonly (political entrepreneurs) manipulate the fears of their ethnic group by making their ethnic groupings feel insecure of their future if another ethnic group ascends to power.5 Politicians exploit ethnic differences by drawing upon historical memories or grievances and whip up emotions and hatred in order to gains or strengthen with power.

 

read more Challenges of Ethnic Diversity in India

 

Ethnic Rights in International Relations

Many internal wars have been fought since worlds war two took the form of ethnic violence conflicts.6The international community join hands and crafted international laws and principles that seek to protect the rights of every person including those of minorities. When conflicts occur, minorities are the ones who suffer the most. The term minority do not have universal definition.it is that group of people who are few in number in a certain place where there is a dominant group and possess characteristics of either ethnic or religious group.7 The legal basis for protection of minorities rights has been expressly provided in many conventions. In 1948 for example, minorities rights were recognized in the Convention on the Prevention and Punishment of the Crime of Genocide8 which guaranteed the minorities against acts that will harm their ethnic or national or religious identities.9 Article 27 of international convention on civil and political rights10 provided that every person has a right to which includes those of minorities. The office of High Commission of Human Rights with Human Rights Council plays a major role in ensuring that states comply with international human rights. They serve as the watchdog for minority rights in this case. The convention of Rights of Child call for the protection of rights without discrimination as to race, sex, gender or ethnicity.11 In 1992, United Nations member states adopted a Declaration that mandate member states to protect the rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities12 which covered the rights of minorities comprehensively. Article 1 of the convention provides that “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity”13 this is in tandem with the African Charter on Human and People rights which call for respect of human rights without discrimination as to ethnicity or race, sex culture or political opinion.14 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families15 entered into force in 2003, it further advance rights of people under the convention.16 The 2001 Durban Declaration also put fort protection of human rights among them the minority rights. Many wars that have been fought based on ethnic rivalry caused many deaths, for instance the Rwandan Genocide that claimed almost one million people in hundred days and the wars fought in Yugoslavia. The systematic killings in Rwanda and Yugoslavia were against the norms set by the Geneva Conventions and other conventions. The state must protect the existence of minorities, therefore those people who participate in any way to eliminate another group should be brought to justice since the legal system is sufficient. There is the international criminal court established by the Rome Statute, under article 7 has the mandate to prosecute such genocide offences.17In the Nyiramasuhuko et al Case18 , high profile politicians in Rwanda were convicted of genocide offences as per Article 3 to the common Geneva convention and additional protocol 2. In the case of Bagosora et al (military 1)19 Ntabakuze Aloys was also convicted and imprisoned for 35 years. The states are obligated under all these conventions to undertake to protect the rights of minorities through various means deemed necessary by states.20 For instance, Kenya by virtue of Article 2

 

  • (6) has undertaken to meets its obligations of respecting minority rights. Under the Kenyan constitution, the state should treat every person as equal before the law and their rights must be

 

upheld.21  The law must be sufficient to ensure that it creates an environment of peaceful coexistence in the country. As in as much as the constitution should provide freedom to rights such as expression22, such rights cannot be an absolute right otherwise politicians and any other person may abuse it especially to propagate hate and incitement which has been a recipe to ethnic animosity and consequently ethnic violence. The law must then limit such law.23

Subject to ratified international conventions on human rights, it is the responsibility of each state to ensure that the constitutional framework has sufficiently accommodated all minorities that exist in the state.24 The value system should also envisage protecting all individual rights from economic and social rights, political rights and religious rights. Rwanda and former socialist Federal of Yugoslavia failed in its duty to protect all the minorities that were within their territory. Many break-ups in the former federal state of Yugoslavia was due to increasing nationalistic sentiment and also move to have autonomy of their affairs. The United Nations gives people right to self-determination25 hence so long as any group of people meets the criteria set then they cannot be denied that right. This was replicated in case of Kosovo after the Kosovars had been excluded from the larger part of the government led by Serbs.26 The ethnic conflict that arose as a result of multi-faceted factors, among them ethnic- mobilization led to ethnic conflict which affected the minorities who were living in Kosovo at that time,27

It is therefore in the spirit of good governance that government should promote inclusivity in its structures so that no ethnic group feels marginalized or excluded. For example, the constitution of Kenya has fostered that spirit by entrenching fundamental rights in the bill of rights. It has national values and principles of governance28 which if embraced will help foster unity.

Most states fail to address the root causes of negative ethnicity. There are many issues that hide behind ethnic conflicts which state should give attention

read more Indigenous status of ethnic minorities in Bangladesh: A constitutional review

 

Constitutional framework to curb ethnicity

Most states adopt a governance system that tries to give positions to various ethnic groups within the state. This is encouraging consociation, a principle where many ethnic groups participate in the government through power-sharing.29Devolution is another significant factor where power is decentralized close to the people, in this setup, the people fell their representation at very lowest level. This has been instrumental in ensuring that an ethnically diverse society remains united.

 

What states should envisage?

Human rights are indispensable. Every state primary role is to protect its citizens and guarantee them their rights. It is premised on that role that states are obligated to comply with conventions that have been ratified by states. There are enough laws on human rights that comprehensively cover the rights of minorities hence it is upon the states to put in goodwill and implement them to the latter. Stemming from analysis of various conflict around the world, ethnic conflicts have always resulted in serious ethnic violence that serious effects such as displacement and deaths.

During the conflict witnessed in Yugoslavia, it was clearly due to power struggles that were propagated by the leaders of the states that formed the state. The 1972 Yugoslav constitution for instance distributed power among the republics and ensured that there is a representation of different ethnic groups in the government. The 1974 constitution, for instance, gave autonomy to the republics which were composed of different ethnic group hence they felt accommodated in the government structure.

 

Conclusion

All states have a duty toward its citizens, among them the duty to protect the rights of all persons without discrimination. It is important that all people are treated with respect and dignity and have the full protection of the law. Accordingly, one way to create an environment of positive peace is addressing all those issues that underlying which are potential to ethnic violence. Governments should, therefore, take into account to promote political participation through a constitutional limit that promotes such an undertaking.

 

Recommendation

  • Having discussed the place of states in ensuring that minorities are protected, the following can also be done.
  • Devolution of powers, when people own the power they feel that they are included in the system
  • Governments should promote the economic welfare of its citizens and elevate poverty levels
  • Integrate peace studies into the curriculum of all education systems
  • Allow public participation in government affairs
  • Promote education in all areas of the country
  • There should be the equal distribution of resources and opportunities

 

writer
John Kiplagat Chemng'as
student, Kenyatta University School of Law
Kenya



 

references:

  • Kahn, J. S. (1981). Explaining ethnicity: a review article. S.l.: S.n.
  • Yang, P. Q, Ethnic studies: issues and approaches. Albany (N.Y.): State University of New York Press. (2000)
  • Nina B, T Milej, Synthetic Report on Human rights under the Yugoslav System, Process of ethnic Mobilization and EU Crisis Management. March 2007
  • Supra note 2
  • Supra note 3
  • Smith D, Trends and causes of Armed conflict Research Centre for Constructive Conflict Management edt (2004)
  • Promoting and Protecting human rights, A Guide for Minority Rights Advocates available at ohchr.org (accessed 1 may 2017)
  • Available at unesdoc.unesco.org (accessed 1 May 2, 2017) 
  • Article 2, The Convention on the Rights of the Child available at ohchr.org (accessed 20 April 2017)
  • Article 5, convention on the prevention and punishment of crime against Genocide
  • (ICTR- 98- 41)
  • (Butare) (ICTR-98-42) Available at rscsl.org
  • Article 3, Convention on the Prevention and Punishment of the crime of genocide
  • Article 1
  • Article 1 adopted United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities
  • Artcile 2 African Charter on Human and People rights
  • Available at ohcr.org International Covenant on Civil and Political Rights available at http://treaties.un.org (accessed 30 April 2017)
  • United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities available at ohchr.org (accessed 20t April 2017)
    • Article 27 (4
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