An Analysis of the Universal Periodic Review Mechanism: a Comparative Study of Ethiopia and Kenya

Abstract

The Universal Periodic Review (UPR) is an interstate peer review instrument. The UPR was established in 2008 by the Human Rights Council (HRC) of the United Nations (UN) to monitor State conformity with human rights requirements under international law and other human rights obligations. The expectation is that the UPR performs HRC‟s goal of holding UN Member States to respect, protect, fulfil and promote universal human rights. Despite the existence of the UPR mechanism, seemingly, States have continued to apply standards that are below the set international standards thereby continuing with human rights violations. This research sets out to evaluate and compare State adherence to civil and political rights in Ethiopia and Kenya. Ethiopia and Kenya are UN Member States that have each been subjected to the UPR review process for compliance. The two states exhibit different levels of human rights observance. This research was guided by the question: have Ethiopia and Kenya complied with recommendations made during their periodic reviews? As a qualitative research, the study examined and analysed literature on the UPR mechanism specifically on Ethiopia and Kenya with regards to effecting recommendations given during their reviews. The researcher analysed data from official statistics generated by institutions that include but are not limited to UN bodies especially those that set human rights standards, national non-governmental organisations (NGOs), government departments and national human rights institutions (NHRIs). State is obligated not to interfere with civil and political rights. They belong to the right holder and the State is obligated to provide an environment in which they are not interfered with. Using John Rawls liberty theory (Rawls, 1971) the study interrogates the effectiveness of the UPR mechanism in making Ethiopia and Kenya implement UPR recommendations. John Rawls is an exponent of two essential principles of justice through which just and morally acceptable society could be guaranteed (Rawls, 1993). The first principle guarantees the right of every person to have the broadest basic liberty well-matched with other peoples‟ liberty. The second one discourses that social and economic positions are to be: to everyone‟s advantage and available to all. Rawl endeavoured to present how such principles would be universally applied. He thus uses a theoretical “veil of ignorance” in which all the “players” in the social game would be subjected to what is known as “original position” where they have a common understanding of the facts of “life and society”, and each of them put up with the rules of the game based on their moral obligation. Through denying them any particular facts about themselves, they are forced to adopt a generalized judgment that bears a strong alikeness to the social setting that allows all to enjoy all the basic and fundamental liberties. States, in preferring economic development over basic liberties in the guise of prioritising economic, social and cultural rights end up violating citizens‟ rights. The study finds that the UPR mechanism fails to be as effective as it was intended to be due to its inability to censure States for disobedience or failure to implement recommendations. The study also finds that Kenya ranks better than Ethiopia in its observance of civil and political rights recommendations received from the UPR mechanism. The research recommends the Human Rights Council to improve its oversight role by instituting measures that would compel States to implement recommendations. It also recommends the HRC to offer technical support to those States that genuinely encounter limitations.