This briefing paper was presented by Commonwealth Human Rights Initiative (CHRI) http://www.humanrightsinitiative.org/ at the Commonwealth People’s Forum, held in parallel with the Commonwealth Heads of Government Meeting in Kampala, Uganda in 2007. It covers the first ten years of CMAG’s history.

The Commonwealth has a number of compliance mechanisms which monitor the progress of human rights and democratic governance in member countries. The Commonwealth is perhaps the only international organisation which has the mandate to publicly express concern on serious or persistent violations of democratic principles in a member country, and take appropriate measures to reverse such derogation without being accused of interfering in the internal affairs of states.

The Commonwealth’s most formal mechanism for assessing member countries’ compliance with the Harare Principles is the Commonwealth Ministerial Action Group (CMAG) which is constituted by Commonwealth Heads of Government every two years. CMAG has the power to suspend countries from the councils of the Commonwealth if circumstances require such extreme measure, without waiting for formal endorsement from Heads of Government.

CMAG also has the power to readmit a suspended member in the Commonwealth without seeking Leaders’ approval, if it is satisfied that the concerned country meets the Harare benchmarks fully.

Despite some apparent setbacks in a few countries that violated the Harare Commonwealth Principles, namely Zimbabwe, Pakistan and Fiji Islands, as well as its long engagement with The Gambia, Maldives and Cameroon for democratic and electoral reform, which is yet to bear fruit, the Commonwealth has come out stronger and consistent in implementing its rules of engagement. These mechanisms, which are broadly classified as formal and informal, can be further refined and made effective through greater co-ordination within the Commonwealth family involving the Commonwealth inter- governmental bodies, Commonwealth accredited organisations and Commonwealth civil society organisations.

The Commonwealth remains the most effective organisation for pooling resources and involving governments, NGOs and media as partners in democracy and development.

Introduction

Constitutional guarantees for individual liberty and fundamental freedoms, backed by a strong and independent judiciary are an essential feature of democratic societies. Commonwealth countries’ commitment to the fundamental political values of the Commonwealth, and in particular the Harare Commonwealth Principles, is rooted in this principle. The task of deepening democracy and institution building is not possible without taking into account the role citizens play in democratic governance and the freedoms they enjoy in exercising their rights without any unlawful restrictions imposed on them by the state, institution, group or individual.

Commonwealth Heads of Government have resolved in the Harare Commonwealth Declaration and subsequent CHOGM Declarations to abide by their commitment to democracy and the rule of law and other fundamental values. They have also agreed to place their governments under certain compliance mechanisms which are collectively administered by the Commonwealth and guide the work of the association in advancing human rights in member countries.

1. INFORMAL MECHANISMS

1.1. Role of Commonwealth Agencies and Organisations

A number of Commonwealth accredited organisations such as the CPA, CLGF and CAPAM pursue their activities in the overall context of the Harare Commonwealth Principles. Although these organisations work quietly and often in their own specialised areas, they identify and promote good practice in human rights, gender equality, democratic pluralism, decentralisation and devolution and liberal democracy.

1.2. Civil Society Networks

The Commonwealth Foundation is responsible for coordinating the activities of professional associations and civil society organisations in member countries. The Foundation’s work is supported by a number of independent Commonwealth civil society organisations which focus in specific areas, such as the CHRI in human rights, and CTUC in trade union issues.

1.3. Commonwealth Media

Commonwealth media organisations, in particular the CBA, CPU and CJA have helped to free media from government control and provided training to media personnel in member countries. Media freedom is an important component of democracy and human rights.

1.4. Commonwealth Academic Institutions and Think Tanks.

Commonwealth universities and think tanks such as the CPSU have made a valuable contribution in generating fresh ideas to constantly test the relevance of the Commonwealth in modern times. They have defined the vision of the Commonwealth as an association working to empower people, promote fundamental freedoms and create economic opportunity in a globalised world.

2. FORMAL MECHANISMS

2.1. Good Offices Work of the Commonwealth Secretary- General for conflict prevention and resolution.

At the Coolum CHOGM, Commonwealth Heads of Government reiterated their commitment to strengthening the good offices role of the Secretary-General in supporting democratic practice, resolving tensions, conflict prevention and resolution and post-conflict rebuilding.

Under present arrangements, it is not possible for CMAG to formally discuss a country where the Secretary-General’s good offices role is ongoing. CMAG can only intervene if the good offices do not resulted in any tangible progress on compliance with the Harare Principles. This places the Commonwealth Secretary-General in a sensitive position. If a period of two years could be set as the upper limit for good offices, CMAG could directly engage with these countries by placing them on its agenda after this deadline.

By its very nature, the Commonwealth good offices process for conflict resolution is unpredictable and has no end date. During this period, if the fundamental human rights

2.2. The Commonwealth Secretariat

The Commonwealth Secretariat has several programmes for deepening democracy and promoting human rights in member countries which are overseen by the Human Rights Unit and the Political Affairs Division. In addition, a number of other Divisions provide support for the Secretary General’s good offices role and assist member countries in institution building and reform.

The Commonwealth Secretariat also builds strategic partnerships with other Commonwealth bodies and institutions, as well as with regional and international organisations to coordinate its work in conflict resolution, local government reform, parliamentary good practice, election observation, human rights, gender mainstreaming and legal and constitutional reform in member countries.

2.3. Special Envoys

The Secretary-General’s good offices involve the appointment of Special Envoys who assist the process of negotiations and consensus building in times of crisis and/or serious violation of Harare Principles. Special Envoys have also been appointed when member countries request assistance for resolving internal conflict or overseeing constitutional and electoral reform. A meeting of Special Envoys was held in London in 2006 to review the Commonwealth’s ongoing work and draw up lessons from their collective experiences.

The work of the Special Envoys is not easy. It is also complicated by the fact that Special Envoys are not authorised to make any commitment on behalf of the Commonwealth for technical assistance

for capacity building or development projects. This reduces the ability of Special Envoys to press for early action.

Special Envoys are also sometimes not available on a full time basis to pursue the good offices mandate in a sustained manner.

2.4. Commonwealth Election Observers

Election observation has been a flagship of the Commonwealth’s democracy and human rights programme for over fifteen years. It has provided the basis for further engagement with member governments for technical assistance for capacity building for the electoral management body, for introducing good offices and for providing vital reports to CMAG on the basis of which the Group has sometimes suspended countries from the councils of the Commonwealth.

2.5. CHOGM and Commonwealth Ministerial Meetings

The Commonwealth has taken failing countries to task through public statements of disapproval as well as through suspension from membership if they repeatedly fall short of their commitments on democracy, human rights, rule of law and separation of powers.

The Commonwealth’s disapproval of states’ non-performance on human rights goes much further than the steps taken by any of the international organisations, including the UN. Although Commonwealth Foreign Ministers have met annually since 2002, the body that has the direct mandate from Heads of Government to act as the custodian of Commonwealth’s fundamental political values is the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG).

Although Heads of Government have given CMAG full powers in regard to taking appropriate measures, including imposition or lifting of suspension, they have sometimes taken matters outside the remit of CMAG as happened in the case of Zimbabwe when they decided to set up a Troika to deal with Zimbabwe. Subsequently, the Troika was expanded and became a Committee of Six Prime Ministers to deal with the Zimbabwe issue. Generally, Heads of Government have rarely interfered with the work of CMAG and endorsed its decisions.

2.6. CHOGM Chairperson-in-Office

Since the Coolum CHOGM, CMAG has also benefited from the contribution of the Chairperson in Office, whose representative is on the membership of the Group. The Secretary-General also consults the Chairperson in Office on good offices.

The role of the Chairperson in Office between one CHOGM and another is still evolving and has not yet been defined formally. To supplement this role, the Commonwealth tried the concept of the Troika, by constituting a Committee, comprising the past, current and future Chairpersons in Office, but it was not very successful.

2.7. Commonwealth Ministerial Action Group (CMAG)

CMAG is a vital source of support and encouragement to member countries in upholding the fundamental political values of the Commonwealth as enshrined in the Harare Declaration. At the same time, CMAG acts as a ‘court’ for those countries which have persistently violated Harare Commonwealth principles or undermined democracy on the grounds that these reflect national circumstances.

CMAG has provided broad strategic direction to the Commonwealth Secretary-General for the provision of technical assistance required by member governments to help with constitutional reforms, independence of the judiciary and capacity building for effective election management bodies.

CMAG’s work is guided by two mutually reinforcing mandates. These have been endorsed by all member countries. However, these mandates do not constitute any legal instrument and do not have the force of international law. These are:

(i) Millbrook Action Plan on the Harare Declaration (1995) which set up CMAG.

(ii) Realising Millbrook (March 2002) which clarified CMAG’s mandate to cover situations of serious or persistent violations of the Harare Principles other than military overthrow of democratically elected governments.

The clarified mandate of CMAG lists ten measures that CMAG can take in its engagement with the concerned member country to persuade it to comply with the Harare Principles, or face expulsion.

(i) Consultation by the Chairman of CMAG or the Secretary- General with the government concerned;

(ii) Appointing an envoy or group of eminent Commonwealth representatives to facilitate constructive dialogue in the country concerned;

(iii) Encouraging bilateral demarches by member countries, especially those within the region, both to express disapproval and to support early adherence to the Commonwealth’s fundamental political values;

(iv) Soliciting the support and intervention of regional organisations in promoting adherence to the Commonwealth’s fundamental political values;

(v) After due consultations, the prompt public expression by the Secretary-General of the Commonwealth’s collective disapproval;

(vi) Suspending the member country concerned from the Councils of the Commonwealth;

(vii) While under suspension from the councils of the Commonwealth, a member country should not receive new Commonwealth technical assistance, other than that directed to the restoration of democracy;

(viii) Stipulating an appropriate timeframe for the re-adherence to the Commonwealth’s fundamental political values, after which CMAG could recommend that the member country concerned be fully suspended from the Commonwealth;

(ix) Other steps considered necessary to engage a member government on the need for progress or to express the collective concern of the Commonwealth;

(x) Consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government- to-government contacts; people-to-people measures; trade restrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

In circumstances of continuing serious breaches of the Commonwealth’s fundamental political values, CMAG may consider recommending to Heads of Government that the member country concerned be expelled from the Commonwealth.

Step (x) has never been applied by CMAG. Nigeria returned to democratic rule before this step was contemplated in 1997. On Pakistan, Zimbabwe and Fiji Islands, CMAG went only as far as step vii, namely suspending these countries from the Councils of the Commonwealth.

3.1. There are three distinct mechanisms which enable the Commonwealth to remain engaged with member countries in support of deepening democracy, good governance, the protection of human rights, respect for the rule of law, independence of the judiciary, transparent and inclusive parliamentary processes, freedom of expression, devolved local government and political reform.

A. Formal Channels; B. CMAG Role; C. Informal Channels.

These comprise Secretary-General’s good offices role, Special Envoys,Election Observer Missions, Commonwealth Secretariat, CHOGM and other Commonwealth Ministerial Meetings, Consultations with Chairperson-in Office, Regular Sessions and extra-ordinary Meetings; Submissions to CMAG, Eve of CHOGM Meeting and Report to CHOGM, CMAG Ministerial Missions; Commonwealth Foundation, Commonwealth accredited organisations, Commonwealth civil society and media organisations, Other relevant specialised bodies, academic institutions and Think tanks.

3.2 While there is full and satisfactory coordination between A & B and growing coordination between A & C, there is hardly any coordination between B & C. Closer interaction between civil society and CMAG can build confidence of the countries under CMAG’s audit and multiply channels of assistance. It will also help build domestic capacity for monitoring compliance and release resources for work in other priority areas to link democracy with development.

3.3. The volume and division of work between A & C is balanced but the same is not the case between A & B. While there were as many as 12 countries on the good offices activity in the period following the Malta CHOGM, there were only two countries on the CMAG’s agenda in the same period. CMAG also decided in 2006 to meet in fewer regular sessions than before.

3. Assessment and Conclusions

3.1. CMAG remains the most effective multilateral body in international affairs which has the ability to suspend member countries from the association for violating democratic principles. Its ability to positively engage with countries in order to support and strengthen democratic institutions should be strengthened by enabling the Group to directly call upon other relevant Commonwealth organisations and bodies such as the Commonwealth Foundation, Commonwealth Parliamentary Association, Commonwealth Local Government Forum, Commonwealth Human Rights Initiative and Commonwealth Policy Studies Unit to provide assistance through their monitoring, awareness and capacity building workshops and other training programmes.

3.2. Throughout its work, CMAG has focused on two main issues: subordination of the military under civilian democratic institutions and strengthening the machinery and processes for transparent and free elections. CMAG has not laid sufficient emphasis on promoting liberal democracy in member countries. It has not given priority to respect for fundamental freedoms and individual liberty over all other aspects of government responsibility such as equality, social justice, democracy, stability and law and order.

3.3. CMAG has often overlooked the responsibility of governments to promote sustainable development and achieve consensus building as enshrined in the Harare Declaration and reiterated in the Millbrook Action Programme. The Group has limited its work to promoting only the fundamental political values of the Commonwealth in member countries. At the Abuja CHOGM Heads of Government declared that development and democracy are interlinked and enforce each other strongly. The Millbrook Action Programme also requires that CMAG should link sustainable development to the Commonwealth’s fundamental political values and divide its work equally in both areas.

3.4. CMAG’s mandate on the measures it can take against countries failing the Harare Principles is sufficiently detailed in the Millbrook Action Programme as well as the document ‘Realising Millbrook’. However there is no clear definition of what constitutes serious or persistent violations of the Harare Principles. Member governments have escaped CMAG’s scrutiny despite situations where elections have been postponed beyond the constitutional life of the government, where political parties have not been allowed to function freely or where fundamental human rights of citizens have been abrogated. There is an urgent need to agree on some normative criteria of the breaches of Harare Principles the existence of which should justify CMAG’s direct engagement with the concerned countries, in addition to the involvement of the Chairperson in Office and the Commonwealth Secretary-General’s good offices role.

3.5. CMAG should be encouraged to take note of the June 2006 CHRI Report on the performance of Commonwealth members on the UN Human Rights Council titled: Easier Said than Done’. There are 12 Commonwealth countries currently on the UNHRC, namely, Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, Sri Lanka, United Kingdom and Zambia. These countries have a greater moral obligation to fulfill their human rights commitments compared to other member countries which are not represented on the Council.

3.6. In reality, the pursuit of human rights goals by the Commonwealth has been challenging. Other than CMAG and the Commonwealth Secretary General, who represents the collective voice of governments, member countries have been reluctant to speak publicly in condemnation of the serious or persistent violations of the Harare Principles by another member country. Some do so to protect their bilateral relations; others take a broader view of developments where sometimes Harare Principles are overshadowed by other more significant geo-political considerations. There are also those who prefer to keep quiet because they expect that in the event of a similar situation arising in their countries, the others will take a similar stand and not criticise them publicly.

3.7 Another challenge is that in an increasingly globalized world where regional economic blocs are emerging more powerful than global international groupings, the Commonwealth, as an inter-governmental organisation, does not have a massive development assistance budget, political or strategic dimension or military and technological portfolio to keep its members fully committed to the association’s goals.

3.8. Taken seriously, the Commonwealth not only gives weight to the voice of small and developing states in regional economic groupings, it also works in ways that are more action oriented than being just a grouping of diverse countries.

About the author. Mr Syed Sharfuddin is a former Special Adviser for Political Affairs in the Commonwealth Secretariat, London. He was Deputy Conference Secretary of CHOGM and CMAG from 2000 to 2006. Mr Sharfuddin joined the Pakistan Foreign Service in 1977 and served in senior diplomatic positions in Washington, Harare and Dhaka before joining the Commonwealth Secretariat in 1996. Mr Sharfuddin specializes in South Asia and has written regularly on democracy and good governance.

 For years, democratic elections and constitutional liberalism have formed an intrinsic part of western political culture. But in many countries, although multi-party elections are becoming the norm, respect for the rule of law, separation of powers and fundamental freedoms are on the retreat. The rise of illiberal democracy is therefore a cause for concern.
Today 118 of the world’s 193 countries are democracies. But in many countries, elections are neither free nor credible. In some countries the elected parliament itself imposes restrictions on the freedom of speech and assembly.
According to a survey, 50 per cent of the regimes which lie between confirmed dictatorships and consolidated democracy do better on political liberties than on civil liberties. It can therefore be argued that nearly half of the countries in the world today are illiberal democracies. Seven years ago this ratio was only 22 per cent.
Democracy without its essence is capable of producing inefficient, corrupt and bad governments. This is because the emphasis is placed on elections even though these may be multi-party, with greater participation by women. Constitutional liberalism, on the other hand, is not about procedures for selecting a government but rather the government’s goals. It refers to a tradition of protecting an individual’s right to life and property and freedom of religion and speech through the rule of law. The Magna Carta, the US constitution, the UN Instruments on Human Rights and the Final Helsinki Act are all expressions of constitutional liberalism.
The concept of constitutional liberalism evolved differently in many parts of the world but it was perfected in the late 1940s when most western countries became full democracies. More recently, central Europe has moved successfully from communism to liberal democracy in the same way as liberalism preceded democracy in other countries in Europe in the 1990’s.
In East Asia, countries have incorporated many aspects of constitutional liberalism in their political systems. However, in other parts of the world, elections have not resulted in promoting democratic liberalism.
Absolute democracy can easily undermine liberty. At the same time, excessive emphasis on constitutional liberalism can lead to liberal autocracy. This imbalance has often led to tensions between the centre and local governments. Developing countries have argued for strong central powers to implement difficult and sometimes unpopular economic reforms. In contrast, countries with little centralised power and a tradition of managing pluralism have been able to progress quickly towards liberal democracy.
It is commonly assumed that democracy brings ethnic harmony and peace. Neither is necessarily true. Ethnic harmony is a feature of mature liberal democracies. In fact, without liberalism, introduction of democracy can lead to ethnic conflict and civil war. Democracy introduces an element of competition; liberalism tempers it with accommodation and protection of minorities.
Democratic peace has little to do with democracy. Countries with little tradition of consolidated liberalism can be hyper-nationalistic and are prepared to wage war to protect democracy. Liberalism gives democracies peace through constitutional rights, ensuring that no single leader can drag his/her country into war. It also creates economic interdependence making it costly for democracies to wage wars. There is a need to rediscover the liberal western tradition for the development of good government throughout the world. If a democracy cannot preserve liberty and laws, it is small consolation that it exists in name.
Constitutional liberalism is a gradual and long-term process in which an election represents only one step. If a country holds elections, a great deal from that government is accepted without much regard to its adherence to the rule of law. Also, little effort is made to create imaginative constitutions in transitional countries in order to take them beyond electoral democracy. This must change.
Governments must be measured by yardsticks relating to constitutional liberalism as well as elections. If a government is promoting economic, civil and religious liberties with limited democracy, it should be supported to do more.
Today, democratic governance is not threatened by monarchies, the church or dictatorships. Its problems lie within illiberal democracy, namely erosion of liberty, abuse of power, ethnic divisions and conflict. The most useful role that the international community can play to consolidate democracy is to encourage constitutional liberalism where democracy has taken roots.
One of the major considerations in recommending policy is how to respond to situations where parties and leaders that are corrupt and self-serving use money and muscle power to form governments. Should support for such elected governments be withdrawn or should there be new criteria established where other key elements of democratic governance such as commitment to human rights, the rule of law and separation of powers take priority, with elections playing only a secondary role?
If there is support for such a wider agenda, there should be an international instrument which binds all countries to adhere to certain basic norms of democratic governance against which the international community could demand compliance and provide appropriate assistance.
It has been argued that extremist parties and disparate groups have hijacked the democracy agenda by exploiting poverty, deprivation and external factors such as foreign occupation and economic and social injustice and won elections only to justify their actions in the name of popular support.
The debate is open on whether the democracy agenda be fundamentally altered to isolate such so-called democratic governments, or should there be engagement with them to ensure that they are persuaded to preserve fundamental liberties and laws in return for economic and technical assistance. Globalisation has deepened economic interdependence and integration has created a strong pull factor for such regimes to abandon extremism and violence and embrace constitutional liberalism.
Holding regular and legitimate elections has now become an accepted norm even though some countries are democracies only in name. Efforts should be made to make elected governments accountable to the people.
The international community should assist countries in reviewing their constitutions and legal and electoral framework to bring them in line with liberal democratic principles and strengthen democratic institutions, including electoral commissions to make democracy irreversible.
The doctrine of national circumstances has prevented many countries from accepting the fundamental values of democracy on the pretext that some of these are not compatible with their own history and culture. A major policy consideration is whether to address this issue globally and make liberal democratic principles universally accepted, overriding national circumstances.
Another area where research needs to be undertaken is placing limits on the terms of office of heads of state and government. Are such limits desirable in order to encourage retirement of leaders who have abused the power of incumbency to remain indefinitely in power? There are many examples in the developing countries where such ‘elected’ leaders are still in power.
In many transitional countries the performance of political parties has let down democracy. Political parties are either not mature enough or lack the courage to oppose autocratic rulers.
Political parties have also not been able to develop fully because of their weak internal governance structures, as well as their inability to develop codes of good practice for elections and for dealing with other political parties.
There are five key areas against which the performance of political parties can be realistically measured:
1) Political environment in which parties function and conduct their business. In many developing counties, this environment is fundamentally hostile to political parties. This affects their unity and ability to organise themselves as a formidable opposition.
2) External regulations that shape parties and party systems. Political parties are directly affected by the consequence of an imperfect constitution or its interpretation by a government which is only democratic in name but not in practice. It is also important to examine whether national laws put any restrictions on political parties such as an excessively restrictive framework for the registration of new political parties, limits on the freedom to exercise the right to assembly and free speech and what can be termed as government interference in their internal functioning.
3) Intra-party functioning. This is often the most neglected area of political parties’ work. While parties are active in the political field, they sometimes neglect to conduct internal elections and fail to devise rules and legal frameworks for the selection and removal of party leadership, candidate selection, mechanisms for dispute resolution, funding and internal audit.
4) Institutional shortcomings. Often political parties are found to be organisationally weak and heavily dependent on single leaders. Strong family connections and reliance on few sources for party funding also prevent political parties from transcending their leadership. Institutional issues involve long-term stability of political parties to command support of people which is essential for the stability of democracy.
5) Challenge of emerging new parties based on regionalism, ethnicity and egalitarianism. Established political parties face this phenomenon due to many reasons which include nationalism, rise of specific interest groups, and a desire to practise democracy locally. The performance of political parties depends on the role they play in maintaining inter-party relations and promoting pluralism and fostering peace and democracy. This also helps to form coalitions.
It is possible to rebuild trust in political parties by examining a number of factors that impact on their reputation. Political parties can function independently and efficiently if the external political environment is conducive to nurturing a liberal democratic system.
Political parties can be fully functional only if there is respect for the rule of law, independence of the judiciary and constitutional protection for freedom of assembly, religion and speech.
Without these democratic values, political parties can only struggle to survive and at best contest elections but not deliver much in terms of substance. Effort should therefore be directed first to correct the external environment for political parties to flourish.
It is also important that irrespective of the external environment, political parties raise their game by setting mechanisms for democratic functioning and observe codes of conduct for internal governance. They must play a positive role in parliament, in standing committees and during campaigns at the time of elections.
A major issue regarding the performance of political parties is lack of capacity. Many opposition parties are weak because of shortage of funds and insufficient training of workers. The international community needs to support political parties by offering technical assistance on such issues as internal democracy, inter-party relations, role and responsibility of parties in government and opposition, role of money politics and code of conduct for parties during elections.
Declining trust in political parties can also be measured from the low voter turnout at most elections. One way of rebuilding this trust is for parties to involve citizens in consultations at the grass-roots level. Parties should be prepared to review their policies and mechanisms by taking into account public attitudes and opinions. They also need to build their ability to communicate with voters their achievements and proposals in a positive and targeted manner.
PS: This article was published by the author in the daily Dawn on 13 April 2007 http://www.dawn.com