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I.             INTRODUCTION

1.            At its 22nd Ordinary Session held in Addis Ababa, from 21 to 25 January 2013, the Executive Council, as part of the consideration of the activity report of the Commission for the period July 2012 – January 2013 [Doc. EX.CL/755(XXII)], discussed the situation in Western Sahara. In paragraph 8 of decision 758 (XXII), which it adopted afterwards, the Executive Council requested the Commission to take all necessary measures for the organization of a referendum for the self-determination of the people of Western Sahara in compliance with the relevant decisions of the Organization of African Unity (OAU) and United Nations (UN) resolutions. The 20th Ordinary Session of the Assembly of the Union, held from 29 to 30 January 2013, while deliberating on the report of the Peace and Security Council (PSC) on its activities and the state of peace and security in Africa [Assembly/AU/3(XX)], also exchanged views on the situation in Western Sahara.

2. Throughout the years, the Commission has been providing regular updates on the situation in Western Sahara, on the basis of which both the Executive Council and the Assembly of the Union have had exchanges on the issue. In the Plan of Action adopted at its Special Session on the Consideration and Resolution of Conflicts in Africa, held in Tripoli, Libya, on 31 August 2009, the Assembly of the Union resolved to support the efforts of the UN to overcome the impasse on Western Sahara and relevant UN Security Council resolutions, which call for direct negotiations between the two Parties without preconditions and in good faith, with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara, in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations. To this end, the Special Session called for the intensification of efforts for the holding of a referendum to enable the people of the Territory to choose between the option of independence and that of integration into the Kingdom of Morocco [SP/ASSEMBLY/PS/PLAN(I)].

3. This first progress report is submitted in the context of the follow up to the above-mentioned Executive Council decision and Assembly’s Plan of Action, as well as the regular deliberations of these two organs on the issue of Western Sahara. It provides a background on the question of Western Sahara and an update on the evolution of the efforts aimed at finding a lasting solution to the dispute and other relevant developments. The report concludes with observations on the way forward.
 
II. BACKGROUND

4. The dispute over the non-self-governing Territory of Western Sahara is among the oldest on the agenda of the international community. Since 1963, the Territory has been inscribed on the list of non-self-governing territories to which UN General Assembly resolution 1514(XV) of 14 December 1960 on the Granting of Independence to Colonial Countries and Peoples applies. To this day, the Territory is on the UN list of the remaining 16 dependent territories yet to exercise their right to self-determination, and the only one on the African continent.

5. The case of Western Sahara is thus a relic of Africa’s colonial history, with the Territory having fallen into the hands of Spain during the colonial scramble for Africa, over a century ago.  Spanish domination of the Territory continued until the mid-1970’s by which time the UN General Assembly had been calling on Spain, as the Administering Power, to organize a referendum to enable the people of Western Sahara to exercise their right to self-determination.

6. Morocco, which had been laying claims over the Territory, was in dispute with Spain over the issue and was applying continuous pressure on the latter to transfer authority over the Territory to the Kingdom. When Spain initially agreed with the UN to organize the requested referendum, under its auspices, during the first half of 1975, Morocco objected and went on to propose to the General Assembly that the International Court of Justice (ICJ) be requested to give an opinion on the dispute.

7. By resolution 3292 (XXIX) adopted on 13 December 1974, the UN General Assembly decided to submit two questions for the ICJ’s advisory opinion, namely: (i) "Was Western Sahara (Saguia El Hamra y Rio de Oro) at the time of colonization by Spain a territory belonging to no one (terra nullius)?"; and (ii) "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?". On 16 October 1975, the ICJ published its Advisory Opinion, concluding that Western Sahara (Saguia El Hamra y Rio de Oro), at the time of colonization by Spain, was not a territory belonging to no one (terra nullius); and that it had not found legal ties of such a nature between Western Sahara and either Morocco or Mauritania that might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.

8. On 6 November 1975, Morocco launched what came to be known as the Green March with 350,000 Moroccans crossing the border into Western Sahara. That was subsequently followed by the Madrid Accords – signed on 14 November 1975 by Spain, Morocco and Mauritania – establishing a tripartite administration and committing Spain to withdraw from the Territory by the end of February 1976. The net effect of that evolution was to usher in the occupation of the Territory by Morocco and, until it withdrew in 1979, by Mauritania, heralding the onset of armed hostilities between Morocco and the Frente Polisario forces.

9. The OAU engaged in a mediation process, which culminated in the adoption by the 19th Ordinary Session of the Assembly of Heads of State and Government, held in Addis Ababa from 6 to 12 June 1983, of an OAU Peace Plan, through resolution AHG/Res.104(XIX). In the resolution, the Assembly urged the Parties to the conflict to undertake direct negotiations, with a view to bring about a ceasefire to create the necessary conditions for a peaceful and fair referendum for self-determination for the people of Western Sahara, without any administrative or military constraints, under the auspices of the OAU and the UN. The Assembly requested the UN, in conjunction with the OAU, to provide a peacekeeping force to be stationed in Western Sahara, to ensure peace and security during the organization and conduct of the referendum.

10. On 11 August 1988, the UN Secretary-General and the Special Envoy of the then OAU Chairman presented to the Parties Settlement Proposals, the objective of which was to enable the people of the Territory of Western Sahara to exercise their inalienable right to self-determination and independence, in accordance with UN General Assembly resolutions 1514(XV) and 40/50, as well as resolution AHG/Res.104(XIX). More specifically, the Settlement Proposals addressed issues relating to the role of the Security Council, the mandate and functions of the Special Representative of the Secretary-General, the ceasefire and the referendum, which was to be organized and conducted by the United Nations, in cooperation with the OAU, for the people of Western Sahara to choose, freely and democratically, between independence and integration with Morocco. On 30 August 1988, the two Parties informed the UN Secretary-General of their agreement in principle to the Settlement Proposals.

11. In resolution 621 (1988), adopted on 20 September 1988, the Security Council, taking note of the agreement in principle given by the Kingdom of Morocco and the Frente Polisario to the joint proposals of the Secretary-General and the OAU Chairman, and anxious to support these efforts with a view to the holding of a referendum for self-determination of the people of Western Sahara, organized and supervised by the UN, in cooperation with the OAU, authorized the Secretary-General to appoint a Special Representative for Western Sahara. It further requested him to submit a report on the holding of the planned referendum and its modalities. In resolution 658 (1990), the Security Council approved the report of the Secretary-General of 18 June 1990, which contained the full text of the Settlement Proposals, as accepted by the two Parties, as well as an outline of the plan provided by Secretary-General, in order to implement these Proposals. On 29 April 1991, the Security Council, in resolution 690 (1991), decided to establish the United Nations Mission for the Referendum in Western Sahara (MINURSO).

III. EVOLUTION OF THE MEDIATION EFFORTS

12. To this day, the Settlement Proposals remain the only agreement ever accepted by both the Kingdom of Morocco and the Frente Polisario towards the peaceful resolution of the dispute over Western Sahara. While the ceasefire component of the Plan, agreed to by the two sides on 6 September 1991, still holds, no progress was made regarding the holding of the envisaged referendum of self-determination.

13. In accordance with the Settlement Proposals and the Implementation Plan, the Secretary-General, on 23 April 1993, appointed the Chairman of the Identification Commission, including experts, in whose work the Parties and the representatives of the OAU would participate as official observers. Under the authority of the UN Secretary-General Special Representative, the Commission was tasked to identify and register those eligible to vote in the self-determination referendum.

14. The identification process, which started on 28 August 1994, faced several difficulties. In particular, the process witnessed a long impasse from the end of 1995 to the beginning of 1997. This situation led the then UN Secretary-General, Kofi Annan, to appoint James A. Baker III, a former US Secretary of State, as his Personal Envoy, with the mandate to re-evaluate the extent to which the Settlement Plan was implementable. Following a series of direct talks facilitated by the Personal Envoy, the Parties reached an agreement on the outstanding issues, leading to the signing of the Houston Accords, on 16 September 1997.

15. The identification process resumed thereafter, and was concluded at the end of 1999. A roster of potentially eligible voters of 86,386 was eventually identified, out of a registered total of 244,643 applicants. About 131,038 applicants had registered for the appeals recourse until Morocco decided, as of February 2000, to halt any further engagement with the exercise. This ended the implementation of the provisions of the Settlement Proposals, resulting in a stalemate in the peace process. The subsequent efforts by the Personal Envoy, including the convening of three face-to-face meetings between Morocco and the Frente Polisario, between May and September 2000, and the submission of a Draft Framework Agreement providing a devolution of authority to the inhabitants of the Territory, with final status to be determined by a referendum five years later, did not make it possible to break the impasse. 

16. In resolution 1429 (2002), adopted on 30 July 2002, the Security Council, having expressed concern at the lack of progress in the settlement of the dispute over Western Sahara and underlined the validity of the Settlement Plan, expressed its continued strong support to the efforts of the then Secretary-General, Kofi Annan, and his Personal Envoy; invited the Personal Envoy to pursue these efforts, taking into account the concerns expressed by the Parties; and expressed its readiness to consider any approach which provides for self-determination that may be proposed by the Secretary-General and the Personal Envoy, consulting, as appropriate, others with relevant experience. The Security Council called upon all the Parties and the States of the region to cooperate fully with the Secretary-General and his Personal Envoy. At the time, it was the view of both the UN Secretary-General and his Personal Envoy that, since the Parties, on their own, were unlikely to demonstrate the requisite flexibility for the negotiations to succeed, it was necessary for the Security Council to decide upon a non-consensual strategy, if progress were to be made to resolve the dispute.

17. On 23 May 2003, the Personal Envoy submitted a Peace Plan for self-determination of the people of Western Sahara. Notably, the Plan proposed an interim period of up to five years under Moroccan jurisdiction and then a referendum of self-determination with three ballot options: integration with Morocco, autonomy under Moroccan jurisdiction and independence.  Those who could participate in the referendum were  those who have been identified as eligible to vote by the Identification Commission, who appeared in the repatriation list of the UNHCR, and had resided in the Territory since December 1999, while the Western Sahara Authority, which would act as the local government, would be elected only by a restricted voters' list, made up of those identified as original inhabitants of the Territory by MINURSO. The UN Security Council, by resolution 1495 (2003), adopted on 31 July 2003, unanimously supported the Plan as an optimum political solution on the basis of agreement between the two Parties, calling on them to work with the UN and with each other towards acceptance and implementation of the Peace Plan.

18. However, this Plan, to which the Frente Polisario consented, could not be implemented because of Moroccan objections to the inclusion of the option of independence in the envisaged referendum. In 2004, after seven years of mediation efforts that failed to make a breakthrough towards the resolution of the dispute, the Personal Envoy resigned.

19. In July 2005, the UN Secretary-General, Ban Ki-moon, appointed Ambassador Peter van Walsum of the Netherlands, as his Personal Envoy. He was mandated to assess the situation and to look at best means and ways of overcoming the impasse in the peace process. On 10 April 2007, the Frente Polisario transmitted to the UN Secretary-General a “Proposal of the Frente Polisario for a mutually acceptable political solution that provides for the self-determination of the people of Western Sahara”. On 11 April 2007, the Kingdom of Morocco transmitted to the UN Secretary-General a document entitled “Moroccan initiative for negotiating an autonomy statute for the Sahara region”.  The Frente Polisario proposed a referendum of self-determination, including the option of independence, while the Moroccan proposal offered as a solution “autonomy within the sovereignty and territorial integrity of Morocco”.

20. On 30 April 2007, the UN Security Council adopted resolution 1754 (2007). Having taken note of the Moroccan proposal and welcoming serious and credible Moroccan efforts to resolve the situation, and taking note of the  Frente Polisario  proposal, the Security Council “call[ed] upon the Parties to enter into negotiations without preconditions in good faith, taking into account the developments of the last months, with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara”. It requested the Secretary-General to set up these negotiations under his auspices, and invited Member States to lend appropriate assistance to such talks.

21. The Personal Envoy subsequently launched what came to be known as the “Manhasset process”, after the name of the place, in New York, where the meetings were held.   Four sessions of direct talks were convened between the Parties in the period 18 June 2007 to 18 March 2008, with the interested neighboring countries of Algeria and Mauritania in attendance.  However, no progress was achieved in these talks because of Morocco’s insistence that its proposal for autonomy should be the only basis of the negotiations. At that stage, Ambassador Van Walsum decided to go public with his assessment that, in the world of realpolitik, “the Frente Polisario should give up its aspiration for independence and accept to solve the dispute on the basis of the Moroccan autonomy plan”. While he was convinced that the legal arguments on the dispute were on the side of the Frente Polisario, he felt, since the Security Council was not willing to put pressure on Morocco, that the most realistic thing for the Front to do, under the circumstances, was to accept the offer made by Morocco and settle for less than it had bargained for.

22. The Frente Polisario reacted negatively to this proposal. Thereafter, the Secretary-General decided to replace Ambassador Van Walsum, in January 2009, with Ambassador Christopher Ross, of the United States, as his new Personal Envoy for Western Sahara. Instead of continuing with the direct talks by convening Manhasset V, Ambassador Ross proposed first to organize “informal talks”. The objective was to build confidence and trust between the two Parties to facilitate bilateral dialogue towards a more substantive discussion of the core issues at stake in the dispute.

23. In resolution 1871 (2009) adopted on 30 April 2009, the Security Council welcomed the Parties’ agreement with the Personal Envoy’s suggestion to hold small, informal talks in preparation for a fifth round of negotiations.  It called upon the Parties to show political will and work in an atmosphere conducive to dialogue, in order to enter into a more intensive and substantive phase of negotiations.  It further called upon them to continue negotiating without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments, with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self determination of the people of Western Sahara. Subsequently, Ambassador Ross visited the region on several occasions for consultations with the relevant actors on the issue.  He also organized nine rounds of informal talks between the Parties in Austria, New York, and Malta. However, no progress was made.

24. In May 2012, Morocco declared that it had “lost confidence” in Ambassador Ross, meaning that it could not cooperate with the Personal Envoy in his mediation. Subsequently, and following a direct telephone conversation between the UN Secretary-General and the King of Morocco, that position was reversed, thus enabling the Personal Envoy to resume his work. In October/November 2012, for the first time, the Personal Envoy visited the Territory to get a first-hand look at the situation on the ground by meeting with self-determination and pro-democracy activists, human rights defenders and pro-Moroccan partisans, in the city of Laayoune. Ambassador Ross has since been consulting with the “Friends of Western Sahara” - the United States, United Kingdom, France, Russia and Spain - as the former colonial power in Western Sahara - to seek further support for his efforts towards the search of a solution to the dispute.

25. On 8 April 2013, the UN Secretary-General submitted a report to the UN Security Council containing detailed information on the evolution of the situation and the mediation efforts of his Personal Envoy. He indicated that the “negotiating process remained at a stalemate because the two Parties have refused to move beyond presenting and defending their respective proposals”.  He urged the Parties to engage in genuine negotiations under the auspices of his Personal Envoy, adding that each of them “must accept that neither will obtain the totality of its demands, but rather have to engage in a logic of give and take”.  He further indicated that his Personal Envoy intended to hold bilateral discussions with the Parties, “with a goal of helping them design the contours of an acceptable compromise”.  He also stated that, as the negotiations move forward, his Personal Envoy would engage with other countries of the region and with regional organisations, including the Arab Maghreb Union and the African Union.

26. On 25 April 2013, the Security Council adopted resolution 2099 (2013) on the situation in Western Sahara. In that resolution, the Security Council welcomed the Parties’ commitment to continue the process of preparation for a fifth round of negotiations and recalled its recommendation that realism and spirit of compromise by the Parties are essential to achieve progress in the negotiations; called upon the Parties to show political will and work in an atmosphere propitious for dialogue, in order to enter into more intensive and substantive negotiations; and affirmed its strong support for the commitment of the Secretary-General and his Personal Envoy towards a solution to the question of Western Sahara in this context, and called for renewed meetings and strengthening of contacts. The Security Council called upon the Parties to continue negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments, with the view to achieving a just, lasting and mutually acceptable political solution which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations. The Security Council invited Member States to lend appropriate assistance to these talks.

IV. ACTIVITIES OF MINURSO

27. As indicated above, MINURSO was established by resolution 690 (1991), following the acceptance by the two Parties of the UN/OAU Settlement Plan and its subsequent endorsement by the Security Council. As part of its mandate to implement the provisions of the Settlement Plan,   MINURSO conducted the identification of eligible Sahrawi voters to participate in the projected self-determination referendum. With the stalemate brought about by the problems encountered in the appeal process, the main task of MINURSO on the ground relates to the observation and monitoring of the ceasefire agreement between the Parties.  As at mid-March 2013, the Mission had a military component of 213 personnel, against an authorized strength of 231. By resolution 2099 (2013), the Security Council decided to extend MINURSO’s mandate until 30 April 2014. It reaffirmed the need for full respect of the military agreements reached with MINURSO with regard to the ceasefire, and called on the Parties to adhere fully to those agreements.
28. The Special Representative of the UN Secretary-General, who is also Head of MINURSO, maintains regular contact with the two Parties on the implementation of the Mission’s  mandate and operational matters, and employs his good offices to promote the resolution of issues arising therefrom. He also maintains consultative and collaborative relations with the AU Senior Representative in MINURSO. MINURSO is actively supporting the confidence building measures being run by the UNHCR since 2004, as well as mine action, to ensure the safety of the United Nations personnel.  and raise awareness with the Parties and among the wider population.

V. HUMAN RIGHTS

29. The question of the protection of human rights of the Sahrawi population in the Territory has been of concern over the past few years. In 2006, and following a visit by a delegation of the UN High Commissioner for Human Rights to the Territory and the refugee camps in Tindouf, the latter called for closer monitoring of human rights in Western Sahara. A number of other stakeholders, both from within and outside the UN system, have also expressed concern at the prevailing human rights situation. In September 2012, the African Commission on Human and Peoples’ Rights (ACHPR) undertook a fact-finding mission in the refugee camps, near Tndouf, Algeria. The delegation could not, as planned, travel to Western Sahara, because Morroco did not respond to the ACHPR’s request to visit the Territory. In reaction to the trial and sentencing of 25 Saharawi civilians by a military court in Rabat, in February 2013, for their alleged involvement in the 8 November 2010 Gdeim Izik incidents, the ACHPR, in a statement issued on 23 February 2013, expressed deep concern, noting that the trial took place in a military court without the guarantee of an appeal process, a core element of internationally-accepted safeguards of fair trial.

30. This situation has led the Frente POLISARIO, the ACHPR and a number of international human rights activists to call on the United Nations to empower MINURSO with a human rights monitoring mandate. Indeed, of all UN peacekeeping missions deployed to implement settlement plans, MINURSO is the only one which does not have such a human rights protection mandate. In his 8 April 2013 report, the Secretary-General urged further international engagement and, given ongoing reports of human rights violations, stressed that the need for independent, impartial, comprehensive and sustained monitoring of the human rights situations in both Western Sahara and the camps has become ever more pressing.  However, all efforts to introduce a human rights component in the mandate of MINURSO have so far failed. In resolution 2099 (2013), the Security Council could not agree on empowering MINURSO with such a mandate, but was only able, in its preamble, to stress the importance of improving the human rights situations in Western Sahara and the Tindouf camps and encouraging the Parties to continue in their respective efforts to enhance the promotion and protection of human rights in Western Sahara and the Tindouf refugee camps.

VI. CONFIDENCE-BUILDING MEASURES

31. One program which is a successful exercise, in an otherwise unproductive international engagement in the Territory, is the family visit program, under the confidence-building measures (CBM), started in 2004 to address the negative effects of prolonged separation between Sahrawi families in the Territory and those in the refugee camps in Tindouf.  Since the beginning of the program, 17,697 persons - including 8,160 from the Territory and 9,042 from the refugee camps, have benefited from the exchange program.

32. The CBM program also encompasses free telephone calls for the refugees in Tindouf to contact their separated families in the Territory.  Furthermore, the CBM initiative led to the organization of various seminars on Sahrawi culture, the role of women and other issues, as a means of improving dialogue. Three such meetings in Madeira, Azores and Faro, Portugal, had brought together Sahrawis from both sides of the berm (the separation wall).

VII. EXPLOITATION OF WESTERN SAHARA NATURAL RESOURCES

33. The issue of the illegal exploitation of the natural resources of Western Sahara by Morocco has been the subject of a major complaint by the Frente Polisario, which addressed repeated letters of protest to both the AU Commission and the UN Secretariat.  In this context, the Frente Polisario has raised serious objections on fisheries agreement currently being discussed between the European Union (EU) and Morocco, even after the EU Parliament had earlier voted against the renewal of its predecessor agreement.

34. The Frente Polisario asserts that Western Sahara as non-self-governing territory ought to have its natural resources protected for the benefit of its own people, and that the international community should ensure that they are not exploited by Morocco, the revenues of which will contribute to the strengthening of its occupation of the Territory. It has, in that connection, called on Morocco and all other foreign entities to halt the unlawful exploitation of Western Sahara’s resources and desist from entering into any agreements that would violate the Sahrawi people’s permanent sovereignty over their natural resources.

VIII. ROLE OF THE AU OFFICE IN WESTERN SAHARA

35. The OAU/AU Office in Western Sahara was established following the adoption of UN Security Council resolution 690 (1991), endorsing the UN/OAU Settlement Plan and authorizing the establishment of MINURSO.  The resolution had mandated the implementation of the Settlement Plan to be in cooperation with the OAU. At the time when MINURSO was engaged on the identification of potential Sahrawi voters for the projected referendum, OAU/AU observers from the Secretariat and from over ten OAU Members States participated in the exercise, to ensure the integrity of the identification process undertaken to determine eligibility of the applicants.

36. Since then, the AU Office, which is headed by a Senior Representative, Ambassador Yilma Tadesse, of Ethiopia, and located in the MINURSO premises, has continued to provide regular updates on the situation. On the ground, the Senior Representative maintains close consultations with MINURSO. He also undertakes consultations with both Parties, Morocco and the Frente POLISARIO. The Office participates in donor conferences for humanitarian assistance to the Sahrawi refugees in Tindouf, and its staff travel to military team sites to observe ceasefire regime between the two sides in the conflict. Furthermore, discussions and exchanges of views on the AU perspectives regarding the dispute, as well as on the way forward on the search for a solution to the conflict, are also conducted by the Senior Representative when Ambassadors and other foreign dignitaries, including Personal Envoy Christopher Ross, and other international actors visit Laayoune.


IX. OBSERVATIONS

37. Nearly four decades after the onset of the conflict in Western Sahara, all efforts at finding a solution have so far failed to achieve the expected results. Consequently, the people of the Territory have not been provided with the opportunity to exercise their right to self-determination, as peoples in other non-self-governing territories before them have done. Not only does the prevailing stalemate heightens tension in the Territory, but it also undermines efforts at integration in the Maghreb region.

38. The role of the United Nations Security Council in overcoming the current impasse hardly needs to be overemphasized. I urge the Security Council to fully assume its responsibility and to take the necessary decisions to ensure progress and facilitate a solution. The Commission will lend every support to the UN efforts, in the context of relevant United Nations resolutions and international legality. On 10 April 2013, I wrote to the UN Secretary-General to stress the need for renewed efforts by the international community to overcome the current impasse. I also seized the opportunity to invite the Secretary-General’s Personal Envoy to visit Addis Ababa for consultations with the Commission on the way forward. Copy of the letter is herewith attached.

39. On 10 April 2013, I wrote to the Foreign Ministers of Morocco and the Saharawi Arab Democratic Republic (SADR). Copies of those letters are herewith attached.

40. The OAU-AU, which played such a critical role in the early phase of the peace efforts, should step up its involvement. Accordingly, and on the basis of my current consultations and planned interaction with all stakeholders, I intend to submit, in due course, a report in which I will articulate proposals on how best the AU could join efforts with the United Nations to facilitate the search of a solution, through the free expression of the will of the people of the Western Sahara. A solution to the crisis will go a long way in enhancing Africa’s unity and integration and upholding the values which made the contemporary History of the continent. Pan-Africanism and African Renaissance demand no less.

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