Human Rights, the Rule of Law, and Development in Africa 9780812204513

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Human Rights, the Rule of Law, and Development in Africa

Pennsylvania Studies in Human Rights Bert B. Lockwood, Jr., Series Editor

A complete list of books in the series is available from the publisher.

Human Rights, the Rule of La"", and Development in Africa Edited by Paul Tiyambe Zeleza and Philip J. McConnaughay

PENN University of Pennsylvania Press Philadelphia

Copyright © 2004 University of Pennsylvania Press All rights reserved Printed in the United States of America on acid-free paper 10

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Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4011 Library of Congress Cataloging-in-Publication Data Human rights, the rule of law, and development in Africa / edited by Paul Tiyambe Zeleza and Philip J. McConnaughay. p. cm. (Pennsylvania Studies in Human Rights) ISBN: 0-8122-3783-8 (cloth: alk. paper) 1. Human rights-Africa. 2. Democratization-Africa. I. Zeleza, Tiyambe, 1955-. II. McConnaughay, Philip J. III. Series. JC599.A36 H87 2004 323' .096-dc22 2003066568

Contents

Introduction The Struggle for Human Rights in Mrica Paul Tiyambe Zeleza

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Part I: Universalism and Relativism in Human Rights Discourse 1. Restraining Universalism: Mricanist Perspectives on Cultural Relativism in the Human Rights Discourse 21 Bonny Ibhawoh

2. Toward a Theory of Applied Cultural Relativism in Human Rights 40 N. Barney Pityana 3. Globalization and Some Linguistic Dimensions of Human Rights in Mrica 52 Alamin M. Mazrui 4. The Rule of Law and Sociopolitical Dynamics in Mrica Ada o. Okoye

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5. Human Rights and Minorities: A Theoretical Overview E. Ike Udogu

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6. Globalization and Narrowing the Scope of Democracy in Mrica Kidane Mengisteab

Part II: The Economic and Political Dimensions of Human Rights

7. Human Rights and Development Pansy Tlakula

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Contents

8. Human Rights, Economic Development, and the Corruption Factor 120 Yemi Osinbajo 9. The Regional Protection of Human Rights in Mrica: An Overview and Evaluation 129 Christof Heyns and Frans Viljoen 10. Securing Human Rights Through the Rule of Law in Tanzania Luitfried Mbunda 11. The Human Rights Situation in Egypt Ahmed Thabet

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12. A Sustainable U.S. Foreign Policy Toward Mrica: Promoting Human Rights, Development, and the Rule of Law 173 Cassandra R. Veney Part III: NGOs and Struggles for Human Rights

13. Mrican Human Rights Organizations: Questions of Context and Legitimacy 191 Makau Mutua 14. Human Rights and Development in Mrica: NGOs Claude E. Welch,jr.

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15. NGOs and the Promotion of Human Rights in South Mrica Vincent Saldhana

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16. Civil Society and the Struggle for Human Rights and Democracy in Zambia 216 jotham C. Momba 17. The Compromised Brokers: NGOs and Displaced Populations in East Mrica 235 Monica Kathinajuma Notes

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References

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List of Contributors Index

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Introduction

The Struggle for Human Rights in Africa Paul Tiyambe Zeleza

Africa's Political Transitions As several chapters in this book note, the changes in human rights cultures and regimes in Mrica in the 1990s were facilitated by the astounding political transformations that took place. 1 This was a period of bewildering extremes, which saw the rise of mass movements and mass revolts driven by democratic and developmentalist ideals, as well as mass murder and mass poverty perpetrated by desperate regimes and discredited global agencies. The pace of change was so rapid, the cast of players and stakeholders so numerous that it is difficult to tell a coherent story, certainly not a single or simple story beloved by those who see Mrica as one, either because they have no time for understanding its astonishing diversities or they wish to impose an emancipatory Pan-Mrican solidarity. Yet the imagination seeks a narrative structure, the mind an explanatory framework that makes sense of Mrica's encounter with this most tumultuous of decades, with its triumphs and tragedies, its accomplishments and failures, its passionate pronouncements and painful reversals, its uneven developments and complex demands. What are some of the common experiences and expectations that unite this decade as a historical moment for Mrican peoples in all their splendid diversities? At the beginning of 1990, all but five of Mrica's 54 countries were dictatorships, either civilian or military. Levels of political competition and political participation were low, so that the citizenry exercised little choice in selecting their leaders and determining public policy, and leadership turnover was negligible. Before 1990 no Mrican leader had left office through electoral defeat, those that did leave were mostly ousted in coups, while three-Senghor of Senegal, Ahidjo of Cameroon, and Nyerere of Tanzania-left voluntarily, although Ahidjo tried to shoot his way back to power a couple of years later. By 2000 the vast majority of Mrican countries had introduced political reforms and were at various stages of democratic

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Introduction

transition, although there were some notable reversals, mostly in West Mrica where elected governments in Niger, Gambia, Guinea-Bissau, and Sierra Leone were overthrown. Despite the setbacks, electoral politics and democratic freedoms became an accepted fact of political life in much of Mrica. Several generalizations can be made about these transitions in terms of their tempo and modality. First, they happened very rapidly between the onset of massive protests and accession to office of new elected governments. Second, the patterns of transition were neither linear nor uniform, although they unfolded in distinct phases, amidst setbacks, deviations, blockages and other interruptions. In most cases the transition process began as authoritarian regimes lost legitimacy due to escalating economic and political crises, which triggered mass protests that became increasingly uncontainable and politicized. Almost invariably, the mass protests were initially concentrated in urban areas, galvanized by the grievances of restive students, the disgruntled working people, and the newly pauperized middle classes. The protest coalitions comprised old and new social movements, such as trade unions, professional associations (especially of lawyers and teachers), women's groups, community and nongovernmental organizations, religious leaders, environmentalists and human rights activists. This heterogeneity was both a blessing and a curse for the reform movements, giving them populist punching power, on the one hand, and intense ideological infirmity, on the other. In some cases conflicting interests and visions within the protest movement proved fatal for political liberalization and later for democratic consolidation. At first Mrica's leaders, long used to undisputed power and the fantasies of their own popularity and providence, did not take the protests seriously. But as they mounted, incumbent regimes responded with the customary sticks of repression and the untried carrots of reform. The pendulum swung increasingly towards reform depending on the strengths of the protest movement, the weaknesses of the regime, and the complex conjuncture of regional and international forces, which either emboldened the reform movement to press for more fundamental changes or reinforced its fragmentation as the inherently centrifugal forces sighted the prize of state power. The actual mechanisms and modalities of transition from dictatorship to democratic elections took three broad paths. Needless to say, the actual trajectories of transition varied considerably within each particular path. In virtually all cases there were fierce struggles over the liberalization of rules governing the procedures of political competition and participation, and the structure of government and governance. In contexts of blurred boundaries between party and state, military and civilian apparatuses, or even the leader and the state leviathan, the strategies of politicalliberalization were bound to vary.

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First, there were countries where opposition parties were legalized and multiparty elections authorized through amendments to the existing constitutions by the incumbent regime, with varying degrees of agitation by the opposition forces. This pattern was followed mainly in one-party states where the opposition forces were too weak or fragmented to force national regime capitulation and the regime itself still enjoyed considerable repressive resources and hegemonic capacities. The second path was through national conferences, which brought together members of the political class and the elites of civil society to forge a new political and constitutional order. The national conferences worked in favor of the reform movements in countries where they were held early before incumbent regimes had learnt how to manipulate them, and where the opposition was strong and united and the regime weakened and fractionalized. Finally, there was the path of managed transition pursued by military oligarchies. Their attempt to oversee and tightly control the process and pace of political reform was facilitated by their monopoly of coercive resources, the conceits of bureaucratic rationality and patrimonial fantasies of national guardianship, and also served as an insurance against retribution for abuses of power in future. Nonetheless, the military was responding to the rising costs of prolonged and unproductive caretaking as domestic protests mounted, the demands for rentier services in superpower wars and conflicts diminished, and as the long years of politicization and misrule finally began coming home to roost, sapping professional confidence and cohesion and public faith and fear. 2 But what led to these transitions in the first place? How can we explain them beyond the overwhelming flows of daily news and contingent details? What kinds of democracies have Mricans been fighting for? What is, or rather, what are the futures of the democratic projects? The debates about the origins of this contemporary wave of democratization in Mrica are too well known to detain us much here. Suffice it to say, there are four interrelated levels of analytical dispute. The first set of issues concerns the question of whether these transitions have a long history or are recent; second, the relative roles of structural factors as opposed to individual actions and events; third, the degree to which national and international factors have played a role; fourth, the relative explanatory power of economic versus political factors. I do not believe a movement as vast and complex as Mrica's wave of democratization in the 1990s can be fitted into neat and singular explanations. This movement may have become self-evident from the 1980s, and entered an explosive phase in the 1990s, but it did not emerge out of a temporal desert. It was rooted in Mrica's long histories of struggle against the material depredations and moral deformities of slavery, colonial despotism, and postcolonial misrule. The very fact that the democratic struggles were widely seen as struggles for the "second independence" testifies to

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Introduction

the unbroken memories and unfulfilled dreams of earlier independence struggles. The ease with which old parties that had been proscribed sometimes for a generation re-emerged, the energies with which the protest movements expressed themselves, the languages and strategies they used, from violent street demonstrations to polite legal campaigns, were often reminiscent of the heydays of anti-colonial nationalist struggles, and the connections they established with the once beloved but abused masses suggested deep historical continuities, a reawakening of profound yearnings for freedom. It could be argued that the relative rapidity of the transitions, compared to other regions in Latin America and Asia, was in itself an indication of the resilience of Mrica's traditions of resistance against oppression and exploitation. Thus, the reform movements of the 1990s derived their strength from the rich reservoirs of struggle in their respective societies, while at the same time they were creating new traditions, forging new memories that recast the pasts and futures of Mrican liberation. This suggests that the transitions were products of both individual agents and events, of contingent conflicts and compromises, operating in structured contexts of power, resources, and possibilities. The actors in this drama improvised as they went along, but they improvised on a script with some structure. In short, contingency and structure were interwoven, and cumulatively as the struggles intensified and reforms were implemented, both the contextual parameters and chain of subsequent events were altered. A purely structuralist approach veers toward historical determinism and a contingent one tends to voluntarism. One offers schematic preconditions, such as the equation between democracy and certain levels of economic development, an equation beloved by both western commentators dismissive of democratic prospects in Mrica and Mrica's own dictators seeking refuge from the cheeky demands of democracy in underdevelopment. The other suffers from preoccupation with the present and the fiction of free choice, and offers us analyses that swing with every newspaper headline, thereby exaggerating or underestimating the obstacles or possibilities of democratization in Mrica. This is an argument for taking a long historical approach, one informed by a clear understanding that human agency is the glue that binds structure and contingency together, moving them forward to new states of possibility. No less vexing has been the debate about whether national or international forces played the determining role. The proponents are not beyond appropriating each other's clothes when it suits them. And so those who argue that international forces were predominant-by which they refer to the end of the Cold War, the demonstration effects of communism's extinction in Central and Eastern Europe, and the imposition of political conditionalities by western bilateral and multilateral financial institutions-tend to attribute the origins and implementation of political liberalization and democratization to outside forces, but blame any failures on domestic

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forces. Similarly, those who advocate the primacy of domestic forces behind democratic reforms-by which they refer principally to the power of social movements and the disintegration of the legitimacy of the postcolonial state-are not averse to blaming any blockages and reversals on external dependencies and conspiracies. The reality of the matter, in my view, is that Mrica's transitions during the late 1980s and 1990s, while obviously rooted in domestic struggles against both internal and external forces of oppression and exploitation, were occurring in the context of simultaneous, multiple and contradictory transformations in the global order, which affected, and were in turn affected by, developments in Mrica. The demonstration effects of regional events and transitions-Benin in Francophone West Mrica, Zambia in Southern Mrica, the Palestinian Intifadah in North Mrica, and South Mrica across the continent-were far more critical than those in faraway Europe or Asia and Latin America. In short, Mricans were neither bit players in other people's histories, nor were they insulated from other people's histories. But deciphering the exact connections and causalities between internal and external factors is not easy; in the literature it often amounts to nothing more than noting the synchronicity of events and the self-serving rhetoric of the new western missionaries of democracy. Perhaps the least fruitful of the debates is that which seeks to attribute Mrica's democratization either to economic or political factors. There is much merit in the old Marxian political economy approach, in which politics and economics are not treated as separate spheres, but integrated processes of cause and effect. There can be little doubt that what holds the two together in the Mrican context, providing both the fuel and the trigger for the reform protests, are structural adjustment programs that were imposed with uncompromising zeal by the World Bank and the IMF. These programs shattered the independence social contract, and the already tottering pedestals of postcolonial state legitimacy, rationality, and autonomy came tumbling down. In short, struggles against the austerities and autocracies of SAP by ever widening circles of social classes, soon became politicized, culminating in popular demands for political and economic change, to establish new conditions of living, new conventions of citizenship and governance. Clearly, then, the struggles for democracy in Mrica in the 1990s represented the latest moment of accelerated change in a long history of struggles for freedom, an exceptionally complex moment often driven by unpredictable events and new social movements and visions, anchored in the specific histories and conditions of each country, in which national, regional, and international forces converged unevenly and inconsistently, and economic and political crises reinforced each other, altering the terrain of state-civil society relationships, the structures of governance, and the claims of citizenship. But what kinds of democracies were the Mricans

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Introduction

fighting for? The answers may indeed be as many as the social movements themselves. Each of these movements is inspired by visions of society embedded in the imaginary of its social base, variously organized around the spatial boundaries of nation, region, and community, the social inscriptions of ethnicity, class, and gender, and the myriad ideological idioms that have characterized Mrican social and political thought over the decades. My focus on elections aside, Mricans have certainly been fighting for more than the rights to periodic electoral contests and good governance. In addition to the civil rights of liberal democracies, informed by their own long and unyielding histories of foreign domination and underdevelopment, they have also been fighting for rights to self-determination and sustainable development, struggles that have become even more pressing in our age of triumphalist free-market globalization and narrow systemic options. As in the struggles for the first independence, ordinary Mricans are looking for developmental democratic states that can offer them political freedoms, economic well being, and cultural comforts, that can expand the possibilities of their humanity. This is the humanistic thread that ties the countless stories about democratic struggles in Mrica. Democratic consolidation has taken and will continue to take different paths, conditioned by the constellation of state forms, social movements, class and ethnic forces, regional and international developments facing each country, and the state of its economy and its political traditions. It may safely be said that the future of Mrica's democratic projects will hinge as much on the ability of the new regimes to deliver economic development as on their commitment to safeguarding hard-won political freedoms. None of us really know what the future will bring, how many of these democratic experiments will succeed or fail, the innovations that they will bring to global democratic practice, and what the legacies of the 1990s will be. What we can be sure of, if Mrican history is anything to go by, is that Mrican peoples will continue to fight for better modes of governance and development, in short for more generous ways of living and being human. The democratic wave of the 1990s, unpredictable before then, with all its painful reversals and setbacks, widened the scope of freedoms and expectations for Mrican peoples. Representing the pluralization of associational life and the expansion of political space, it should teach us that history is indeed full of surprises.

The Paradigms and Politics of Human Rights The discussion above simply underscores two pertinent points about the establishment and expansion of democratic and human rights regimes, certainly in Mrica's experience. First, that historically they are products of concrete social struggles, not simply textual or legal discourse. Second, that they are as much about civil and political rights as they are about economic

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and social rights. Writings and debates on human rights often suffer from four analytical traps. They tend to be idealistic, legalistic, dualistic, and ethnocentric; idealistic in that human rights are reduced to ideas abstracted from social history, so that they are seen as the outcome of concepts not conflicts, insights not instigations, philosophy not politics; legalistic in that their provenance is primarily located in the courts not culture, procedure not practice, rhetoric not reality, codes not contingency; dualistic in that they either polarize or prioritize civil and political rights against economic and social rights and vice versa; and ethnocentric in that their source is usually located in the West by both the universalists and relativists. A historical and materialist analysis of human rights clearly shows the limits of these approaches. It is well to remember apartheid was not ended either by a book or a court case neither were colonialism nor slavery, all monumental violations of human rights. To the generations who resisted these atrocities, they did not separate their struggles into neat packages, saying today we fight for civil and political rights, tomorrow for economic and social rights, or in the morning we should focus on the right to food and shelter and in the afternoon the right to free expression. Needless to say, the Europeans perpetrated these particular monstrosities, and many more, including the genocide of the native peoples of the Americas, the two world wars, and the holocaust, which casts doubt on the self-serving myth that the West is the progenitor and proprietor of human rights. European Colonialism did not come with a Bill of Rights, nor later, were structural adjustment programs introduced through democratic elections. This is to argue that Mricans have their own histories of struggle and human rights preoccupations that, in very complex ways, are linked to, but also distinctive from, struggles and preoccupations in other parts of the world. Issa Shhji (1989) contends that while the dominant liberal human rights perspective is important, an Mrican agenda must also be premised on the rights to self-determination and to organization. Tiyanjana Maluwa (1999) is more categorical, arguing that, in their interaction with other states and within the United Nations, Mrican states have shaped or strengthened many principles and rules of modern international law, including international human rights law, such as the right to self-determination, a principle spawned by the process of decolonization in Mrica. Mrica has also been critical to broadening the definition of "refugee" and the principle of non-refoulment in the area of refugee law; the rights of access and transit to the sea and the concept of the exclusive economic zone in the law of the sea; the principle of uti possidetis; the concept of peoples' rights, as opposed to that of human rights; the very expansion of the traditional scheme of human rights to embrace the so-called third generation rights, such as the right to development; the "Nyerere doctrine" of state succession; and, in general, certain principles in the area of international fluvial law concerning the common management and utilization of shared watercourses (Maluwa 1999: xviii-xix).

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Introduction

Writing in the early 1980s, Osita Eze (1984) also singled out Mrican experiences with self-determination, racial and ethnic discrimination, the questions of women's and refugee rights, and regional instruments of human rights protection and promotion as areas where Mrica has distinctive contributions to make. The Western appropriation of human rights does grave intellectual and political disservice to the global human rights discourse and movement. Intellectually, it homogenizes and oversimplifies the human rights traditions of both the West and the Rest (rest of the world) and undermines theoretical advances that can come from serious and sustained intra- and intercultural comparisons and conversations. Politically, it weakens the human rights movement globally in that in the South human rights advocates waste a lot of energy trying to demonstrate that human rights are indigenous and relevant against charges from arrogant outsiders who insist on imposing Northern models and procedures or dictatorial states which dismiss them as imperialist impositions inimical to national traditions, sovereignty and development, while in the North it forestalls the adaptation of approaches from the South to deal with such challenges as multiculturalism, affirmative action and entitlements, inter-ethnic conflict and relations, and the status of women, which existing institutional and legal arrangements cannot adequately handle. This argument is further developed by David Penna and Patricia Campbell (1998) who use the examples of what they call human rights "symbols" from Mrica to show that "traditional" Mrica did have a human rights culture whose study and understanding has theoretical and political relevance for both modern Mrica and the West. While one can query their ahistorical notion of "traditional" Mrica, their general argument, that intercultural dialogue and research offers a way out of the universality and relativism debate, is appealing. In short, trading, sharing, and incorporating human rights experiences, practices, and symbols across cultures and the enduring West-East and North-South divides, can assist in the development of a truly universal human rights discourse and regime, which at the moment does not yet exist. Abdullah An Na'im (1990) argues that a universal human rights regime can only develop out of cross-cultural support for human rights, which requires cross-cultural evaluations inspired by honesty and modesty. To Daniel Bell (1998), theories of human rights based on western moral aspirations and political practices constitute "parochial universalism," and proposes an "interpretive approach" that seeks to find justification for human rights norms from within diverse cultural traditions in order to develop "overlapping consensus" and arrive at a "nonparochial" universalism. But for this to succeed, Evan Charney (1999) argues, fundamental human rights need to be defined clearly. Current universalist claims are based on idealistic and incomplete readings of European and American traditions, which include both the exposition and pursuit of political and

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civil rights as well as the abrogation of the same rights for many. Let us not forget that the poor, women, and racial minorities got the right to vote and all it entails relatively recently. At the time that the Universal Declaration of Human Rights (UDHR) was being signed in 1948, racial segregation was constitutional in the United States, native people were poorly treated in Canada, and France and Britain were colonial powers. The expansion of the human rights largesse to include women and minorities was not imposed from the top by some benevolent ruling elites, but was the result of pressures and demands from below. It has been argued that it was partly because all the major powers, including the former Soviet Union, had something to be ashamed of in their conduct of human rights at home and abroad that in the Universal Declaration they enunciated rights without explaining why people have them and agreed on high principles-the "ought" and not "is"-while leaving the matter of their enforceability unresolved (Ignatieff 1999; Cassel 1998). The disjuncture between rhetoric and reality in human rights discourse and practice among the western countries is evident at both the national and international levels as well as at the theoretical and political levels. The United States, for example-the loudest in denouncing human rights violations in other countries-was instrumental in ensuring that the UDHR was not turned into a binding covenant and has routinely flouted international legal conventions since then. It did not ratify major human rights treaties until the 1948 Genocide Convention in 1987, the last country to do so. The 1965 Convention on the Elimination of All Forms of Racial Discrimination was only ratified in 1992, and the International Covenant on Civil and Political Rights (ICCPR) and the 1948 Convention Against Torture in 1994. But these ratifications were achieved at a high price, in which "reservations, understandings, or declarations (RUDs)," were attached, thereby limiting the impact of these treaties on U.S. law. The United States, for example, has not allowed individual complaints under the ICCPR. Margaret Galey (1998) tells us that the RUDs have been so restrictive that the Netherlands has lodged a legal complaint, alleging that they are incompatible with the basic purpose of the treaties, which is to require states to bring their national law into compliance with the terms of the treaties. The United States has yet to ratify the International Covenant on Economic and Social Rights (ICESR), which along with the UDHR make up the International Bill of Rights, or the 1967 Declaration on the Elimination of Discrimination Against Women and the 1989 International Convention on the Rights of the Child. The United States has also led the opposition to the establishment of a permanent international criminal court to try crimes against humanity, which has pitted the U.S. against all its major European partners. Thus, for all the rhetoric about human rights universalism, the United States actually practices a peculiar particularism, a kind of superpower rights narcissism,

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Introduction

and resists the emerging global human rights regime and finds itself increasingly isolated from Europe with whom it supposedly shares common values. Commenting on Britain, David Forsythe (1998: 508) notes that it has lost the most cases in the European Court on Human Rights "laying to rest the old canard that long-standing Anglo-Saxon democracies have no need of international review of their human rights policies." Interestingly, as the United States goes into what EU External Relations Commissioner Chris Patten once denounced as a "unilateralist overdrive" the only steadfast ally it can find is Britain. No wonder that many people in the South, including human rights advocates, are cynical and sometimes even hostile to American protestations about human rights. They remember only too vividly that during the Cold War relativist interpretations of human rights suited western interests in dealings with Third World dictatorships. Also, the human rights crusade was muted because the West sought to blunt Third World efforts, supported by the communist bloc, for the inclusion of economic and social rights as part of an international human rights regime. It was only after the end of the Cold War that the West became uncompromisingly universalist, now in pursuit of its global capitalist agenda, which it was prepared to defend at the cost of violating the same freedom and democracy it purported to advocate. In the meantime, leaders in the South, boxed between Western pressures and popular struggles for the "second" independence, reacted by espousing more and more relativist positions. Thus, different groups have espoused the relativist and universalist perspectives at different times for ideological reasons, rendering each one of them a potential tool of both oppression and liberation depending on the context. The fractures in the moral unanimity of the West about human rights that this shows is by no means new. Different conceptions and emphases have always existed, for example, between religious and secular interpretations, liberal and Marxist perspectives, nationalist and internationalist orientations, philosophical and pragmatic justifications. Universalist arguments also encourage both orientalist and relativist readings of African and Asian cultures and legal systems, both of which homogenize and oversimplify their histories. Orientalist discourses are based on a racist assumption of fundamental western superiority and African or Asian inferiority, and posit ineradicable distinctions between the West and the Rest, in which the former is constructed as modern, urbane, and dynamic, while the latter is traditional, rural, and static. And so the world is divided into the creators and recipients of human rights, the monitors and monitored, the viewers and the viewed, the globalists and provincialists, the universalists and relativists. The cultures of Africa and Asia, allegedly characterized by tradition, despotism, communalism, and irrationality, are seen as inherently opposed to human rights. Take the case of Islam, for example, an important religious and cultural

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tradition in many parts of Mrica and Asia. To legal orientalists, Islam cannot possess a human rights discourse on four grounds: Islamic law is static because it is regarded as divine; Islam upholds an anti-individualism that is contrary to the idea of human rights; Islam thinks in terms of duties not rights; and human rights can only exist in a positive and modernist legal system. Never mind that Muslim scholars mediated the transmission of much classical Mediterranean civilization to Western Europe, and Muslim empires dominated global civilization and commerce for centuries and developed impressive cities, nation-states, universities, and discourses about power and politics and progress. As Strawson (1997) convincingly argues, legal orientalism proceeds through a process of selection of elements of Islamic law, in which the astonishing pluralism, range, and long history of Islamic jurisprudence on such topics as reason, public and public international law, civil society, sovereignty, and, yes, human rights is ignored, and a few ancient texts stripped of context and history, or some contemporary authoritarian thinkers and leaders in the Muslim world, are privileged to represent an essentialized Islamic law that is read conservatively and contrasted to modern, dynamic and liberal "international law," meaning European law, in order to build an argument that there is intrinsic cultural resistance to human rights in Islam. This is essentially the methodology used in Elizabeth Mayer's (1995) influential text, which Strawson effectively critiques (see also Mayer 1990; Tibi 1990; Monshipouri 1998). Following the end of the Cold War, the search was on for a new evil empire, and given the depravity of Islam in the European imagination, it did not require much to resurrect Islam as the source of the forthcoming clash of civilizations (Huntington, 1993).3 America's incendiary "war on terror" following the tragic events of September 11, 2001, threatens to spark the clash abroad and erode civil freedoms at home. If orientalist methodology, marked by essentialism, otherness, and absence, can be used to dismiss human rights discourse in Islam, a religious and cultural system with one of the world's oldest and continuous textually based legal traditions, the contempt that awaits cultures with oral legal traditions is predictable. Before European colonial conquest at the end of the nineteenth-century, Mrica had societies with both written and oral legal traditions, the former mostly found among Islamic and Christian societies in parts of northern, western, and eastern Mrica. These traditions are still awaiting comprehensive study to determine the nature and development of what can only be diverse Mrican philosophies and jurisprudence of human rights. Many of the generalizations about Mrican ideas about human rights suffer from spatial, temporal and epistemological myopia. Spatially, there is the notorious Hegelian division of Mrica into two, above and below the sands of the Sahara, and the tendency to gaze authoritatively at "Mrica" through the narrow prism of one or two societies, a disorder that afflicts Mricans and outsiders alike.

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Introduction

Temporally, there is the ubiquitous use of the ahistorical term "traditional" to refer to Mrica before European colonial conquest or surviving "indigenous" cultural attributes. Mrica's long history, indeed the longest in the world if it is true that humanity originated there, is permanently frozen and repositioned around the colonial conjuncture, the shortest moment in the continent's history. Even a cursory historical glance shows that over the millennia and the centuries these societies changed, and that they were characterized by uneven levels of development, which the chimeric term "traditional" cannot possibly capture. In fact, there were as many differences among Mrican societies as there were similarities between them and the societies in Europe and Asia sharing similar modes of production and social systems. Moreover, the "traditional" referent obscures the fact that "traditional culture" no longer exists in any pure form anywhere in the world because cultures evolve and Mrica has developed its own modernities in a world of multiple modernities (Comaroffand Comaroff 1993; Tharoor 1999-2000). This is to suggest that both Mricans and outsiders need to wean themselves from the dichotomous and homogenizing civilizational times of the "traditional" and the "modern" if we are to advance our understanding of Mrican histories, realities, and conceptions. The epistemological challenge, specifically, entails confronting and abandoning the writing of Mrica in terms of lack and becoming-lacking and becoming Europealways using Europe as the universal referent. In human rights debates this takes two major tracks. First, as noted and critiqued in Bonny Ibhawoh's chapter, to unapologetic Eurocentricists human rights did not exist in "traditional" Mrica; at best, Mricans had notions of human dignity, which in any case was typical of the peasant worldview throughout the world, including pre-modern Europe (Howard 1990a, b; Donnelly 1989; Tibi 1990). Human rights are then defined very narrowly to mean not simply normative commitment to the freedom of the individual, but primarily the institutional enforcement of individual claims against the state; the notion becomes a negative, not a positive or active one, about protection from, not also of, the state. Second, human rights abuses in contemporary Mrica tend to be attributed largely to "traditional" culture, or bad leaders and the inevitable stresses of modernization in "traditional" societies. 4 The role of colonialism and imperialism in creating some of the conditions that lead to the cultural perversions and human rights abuses is conveniently overlooked. And attempts by Mrican scholars, or for that matter Muslim and Asian scholars, to find pedigrees for modern human rights principles in their histories and cultures are regarded as exercises in fabrication, the critics forgetting that this is the very essence of the intellectual enterpriseconstructing connections and cumulative traditions from textual and discursive bits and pieces of the past and the present-and that the very

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notions of the "West" and a "western tradition" are not eternally revealed truths but relatively recent inventions by European intellectuals. Thus not only do the critics ignore western intellectual practice itself, but also the fact that Mrican cultural legitimacy is essential, even if it were true-a difficult proposition to make-that Mrican societies lack human rights values and norms, if the promotion and protection of human rights is to be increased and the gap between theory and practice lessened. In contrast, in nationalist and Mrocentric circles, it is argued that "traditional" Mrica had a human rights culture that was superior or similar to Europe's, and their intellectual task becomes one of either searching for conceptual equivalents or distinctive features. The latter often rests on, and results in, the amplification of the dichotomies that are so beloved by both universalists and relativists: collective versus individual rights, duties versus rights, "first generation" civil and political rights versus "second generation" economic, social and cultural rights. The "third generation" rights are often defined as "collective" or "solidarity" rights, including the rights to development, to a healthy environment, to peace, to humanitarian aid, and to the benefits of a common international heritage. These dichotomies fly in the face of the fact that communality in Mrica is often as exaggerated as individuality is in Europe for comparable historical periods, and that in both contexts, if they did indeed ever exist as discrete phenomena, individuals and community are mutually constituting and the practice of rights-claiming, consuming, or constraining them-entail a social context, whether cooperative or combative. Ignored, moreover, is that the right to private property, so prized in liberal thought, is an economic right and the welfare state in Europe embodied social and economic rights, while in Mrica the cherished right to development incorporates nationalist aspirations for political and civil rights denied under colonialism. Alternatively, some leftist radicals and conservative nationalists-usually in defense of authoritarian socialist or capitalist state agendas-dismiss human rights as an irrelevant western invention or oppose them as a subversive imperialist ideological ploy. These positions, which are framed in either historical or contemporary terms, although these moments tend to be oversimplified, are rarely based on a comprehensive examination of Mrican texts, languages and philosophies, as well as the protracted histories of struggle for freedom among Mrican peoples on the continent and in the diaspora. Mter all, were not the struggles against slavery and colonialism, and more recently against postcolonial tyrannies and structural adjustment programs, not fundamentally struggles for human rights-Mricans trying to reclaim their inherent integrity and dignity as human beings, for their right to well-being, actualization, and meaningful lives? Can it really be maintained that Mricans don't have a conception of human rights, as the Eurocentricists do, or that they don't want human rights, as some of the nationalists would have us

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Introduction

believe, when there have been generations of resistance against colonial and postcolonial state tyrannies and struggles to entrench democratic and human rights in national constitutions and regional and international conventions? And are not these struggles, and others spawned by new conditions including the contemporary processes of capitalist globalization, continuing throughout the world? Does not that indicate that in theory and practice a universal human rights regime is far from realization but is in the process of formation? Thus, the universalist and relativist positions simplify African conceptions and struggles for human rights and the development and possibilities of constructing a global human rights regime. They are both equally guilty of idealism, abstracting human rights from social history, which makes the universalist-relativist discourses part of the ideological armory of Western and African elites-arguments that cannot stand up to closer historical and political scrutiny. Few of their advocates among social scientists and legal scholars, often armed with a little history and a little anthropology, have seriously studied African philosophy, languages, and conceptual schemes. Philosophers such as Kwame Gyekye (1997), Kwasi Wiredu (1996), and Paulin Hountodji (1996), to mention a few, demonstrate the complex conceptions in the African societies they have studied, and the intellectual vigor of debates among leading African thinkers, on issues like personhood, tradition and modernity, cultural universals and particulars, and pluralism that eschew the facile community-individual, tradition-modernity, and universal-relative dichotomies. This is merely to urge those who make assertions about African human rights values, whether to affirm or dismiss them, based on historical and philosophical claims, to study African history and philosophy seriously. Otherwise the quality of human right discourse on and in Africa, as Shhji (1989: vii), once charged, will remain "intellectually backward, even by the standards of the African social sciences." Clearly, at this historical juncture human rights must be seen in a holistic and integrated manner. To those who prioritize social and economic rights it is well to remember Amartya Sen's (1999) acute observation that no substantial famine has ever occurred in any independent and democratic country with a relatively free press. But it is also apposite to remind those who privilege political and civil rights that deprivation generates debilitating unfreedoms.

Toward a Holistic View of Human Rights Ideas, even lofty ones, are often incubated in the womb of history; they cannot be divorced from concrete contexts and struggles over them. If this is true, and if the past (including ideas produced in the past, however hallowed) cannot exhaust the possibilities of being human, of developing human potentialities, then no society whatever its spatial scale-

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community, country or civilization-can claim, on the basis of its traditions alone, to have discovered and foreclosed, for all times and all places, the universal meaning and modalities of human rights. It is well to remember that the opposition to social and economic rights among western governments was partly engendered by the Cold War. The appropriation of economic and social rights by the socialist countries facilitated the retreat of the United States from the Roosevelts' strong commitment to economic and social rights. To quote Fields (2003: 42): "in the 1950s the Cold War had begun in earnest and the political climate in the United States had changed. As early as 1951, the unease of some western governments with the social and economic rights articulated in the 1948 Declaration and disagreements with the Communist Bloc caused those trying to negotiate a more legally binding covenant to decide that it would be best to propose two covenants, separating the political/civil and economic/social/cultural texts." Human rights, like all ideas and social practices, are continuously being reconceptualized and reconstructed in response to changing materialities, moralities, and mentalities at local and global scales, themselves connected in complex and contradictory ways. This is an argument for contextualization, for intellectual openness, an acknowledgment that the construction of a universal human rights regime is a work in progress to which different societies have a role, indeed a right, to contribute. As already noted, claims of human rights universalism, so beloved in the western image of itself, can easily be shown for their partiality and provincialism. The first half of the twentieth century, the era of untrammelled western power and the internationalization of human rights discourse, was marked by unprecedented assaults against human rights: colonialism and imperialism held captive vast stretches of Africa and Asia, and the world witnessed the horrific destructiveness of the two world wars, genocide, and racism: barbarities largely scripted by Europe and its civilizational offshoots. In the second half of the century, the countries of Africa and Asia, now independent from European colonialism, and those of Latin America (now incorporated into the Third World together with Africa and Asia) added their own terrors and tyrannies to this sad tale of human rights abuse: abuses often hiding behind the tattered veils of development, nation-building, and self-determination which were abetted by the destructive clientelisms of the Cold War. And as we enter the new millennium the story continues: human rights proclamations proliferate as human rights violations persist. Thus, neither the North nor the South, the developed nor the developing worlds can claim to be on the side of the angels where human rights are concerned. Yet, ethnocentricism continues in human rights discourse about the conceptualization, constitution, and contextualization of human rights. A more holistic global regime of human rights would have to encompass all the so-called three generations of rights, namely, the first

16

Introduction

generation rights constituted by political and civil rights; the second generation rights encompassing economic, social and cultural rights; the third generation rights involving the "solidarity" rights to development, peace, communication, and common patrimony shared by all humanity. The growing list of rights, while of concern to some, is itself a reflection of a globalization of rights, the emergence of an increasingly universal human rights regime as more societies and social constituencies, hitherto excluded from rights claims, make their demands for inclusion. The expansion of human rights recasts the age-old debate about the holders of these rights, whether they are individuals or collectivities. The simple answer is both in so far as most political claims and even economic claims-think of corporations the fictitious "person" of liberal jurisprudence-not to mention cultural or environmental claims apply at the level of both individuals and groups. People who suffer from police violence as members of racial minorities in the North or oppressed ethnic groups in the South often do so as individuals who are members of targeted groups; hence the politicized and collectivist nature of struggles for redress in addition to any individual redress that might be sought through the legal system. The right to development, as Margot Salomon and Arjun Sengupta (2003: 7) have reminded us, "is a collective right ... However, it is individuals who are meant ultimately to benefit from the exercise of that right even if they cannot individually assert the right." Similarly, "the freedom from genocide exists to protect an entire group. It would not exist without the existence of the group it is meant to protect. That the right is a group right, does not alter the fact that the right serves to protect individuals but it also serves to protect the group." In short, since many human rights violations are aimed at both individuals and collectivities struggles for rights claims often encompass both. Moreover, as A. Belden Fields (2003: Chapter 3) has persuasively argued, if human rights are grounded in the notion of the development of human potentiality and social recognition (distributive and participatory), the unproductive dichotomies of human rights discourse evaporate, for human potentialities and social recognition are developed in a web of cultural, economic and social relationships in a continuous process of co- and self-determination, so that individual and collective rights as well as social, economic, and cultural rights must have the same standing as political and civil rights. Individuals and collectivities are not only rights holders; they can also be rights violators. Human rights discourse is often so focused on the state as the progenitor of either "negative" rights (protection of political and civil rights) or "positive" rights (promotion of economic, social, and cultural rights) that the state becomes almost the exclusive domain of human rights violation. But nonstate actors can be important protectors and promoters of human rights-as human rights NGOs profess to do-as well as perpetrators of human rights abuses-as extremist political militias and religious

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groups tend to do. In fact, some of the worst human rights abuses have been perpetrated by business interests, with or without state connivance, as in the case of Mrica from the era of the slave trade, to the colonial red rubber kingdoms, to the contemporary era of structural adjustment programs, which have subverted the developmentalist promises and investments of independence. In fact, human rights violations are not uncommon even in the intimate bosom of family relations, perpetrated by men against women, or adults against children sometimes in perverted response to economic pressures and sometimes in misguided affirmation of outmoded cultural practices. To be sure, states, even liberal ones, remain the worst offenders of human rights given their monopolies of, or capabilities for, violence whether at home or abroad, and their capacity to control the conditions of security and subsistence so fundamental to human survival and human rights. It is indeed a tragic testimony to the perilous state of human rights in the contemporary world that war and the trope of war are so pervasive in domestic and international relations: every year in many parts of the world, especially in the South, wars violate the human rights of millions of people, including the very right to life, while the incendiary rhetoric of war is used by the global powers, most carelessly and contemptuously by the lonely superpower, the United States-war against communism, crime, drugs, and now terrorism-to justify rights violations of individuals and groups, at home and abroad, who are unfortunate enough to be seen as enemies of the crusade of the moment, and therefore deserving righteous retribution. Terrorism has in fact become the supreme alibi for governments all over the world for human rights violations; governments that are unwilling to countenance aspirations for human dignity, recognition, and development. The struggle for human rights indeed continues on a global scale.

Conclusion I have tried to argue that it is important to develop a more holistic interpretation of human rights, one that promotes all rights and recognizes that different parts of the world have distinctive contributions to make to the emerging universal human rights movement. In short, the construction of human rights norms is a continuous and dynamic process, foreclosed neither by the exclusivist claims of an imagined western progeny and universality nor an equally fictive Mrican or Asian cultural uniqueness and relativity. In practice, of course, the application of human rights is mediated through local understandings and interpretations. The relativists, concerned about Western hegemony, inadvertently concede too much of the moral high ground to the so-called universalists, who more often than not apply international human rights norms selectively. This is an argument for contextualization, that cultural relativism is mutually interactive with

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Introduction

universalism in so far as what are called universal principles had their genesis in local situations and traditions, and national insights and experiences will continue to improve and perfect international human rights standards and values. At stake is the need to devise practical guidelines to apply and interpret laws, in specific national contexts, in a manner that extends rights rather than diminishes them. A holistic conception of human rights is based on the clear understanding that rights should not exist in binary opposition, although there are likely to be tensions-in theory and practice-that are productive in some cases and unproductive in others, but that all human rights, as conceived in the Universal Declaration of Human Rights, are ultimately interrelated and interdependent, or to use the language of the UDHR, "indivisible and interdependent." These, then, are some of the issues discussed in this book: Mrican conceptions and experiences with human rights, aspirations that are articulated in global, regional and local idioms given the fact that Mrican cultures and societies are interwoven from numerous threads of local, regional, and global historical developments and encounters. The chapters in Part 1 interrogate the varied constructions of human rights in western and Mricanist discourses. Those in Part 2 examine the role played by states in protecting or subverting human rights. Finally, Part 3 concentrates on the role of NGOs in promoting human rights in the continent.

Part I Universalism and Relativism in Human Rights Discourse

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Chapter 1 Restraining Universalism: Africanist Perspectives on Cultural Relativism in the Human Rights Discourse Bonny Ibhawoh

Let me begin with an anecdote that underscores the salience of the theme of this chapter. The story is told of a British anthropologist who, in pursuit of his grand career aspirations, decided to travel deep into the most obscure fringes of Africa for his research on a "primitive tribe." This "primitive tribe" of Africa, he had been told, was so remote and distant that it had made no prior contact with civilization. So, armed with his safari outfit, camping boots, and research tools, he sets out for this exotic part of Africa, through vast virgin jungles and isolated deserts. Finally, he arrives at this most isolated and obscure African village, tired and exhausted, but glad that he has at last fulfilled his lifelong ambition of discovering another "lost tribe" of Africa. He is still wondering how these "primitive, stone-age tribesmen" will react to their first contact with civilization when a scantily clad lad walks up to him and says in impeccable English, "Sir, you look very tired, do you want a Pepsi?" The moral of this anecdote cannot be lost on anyone who lives in our age-an age in which a broad range of trends and forces changing the face of the earth has made our world truly a "global village." The reality of globalization in today's world is that unprecedented dispersion of varied political, social and cultural phenomena across national boundaries have compressed time and space in a way that territorial distance has become of limited significance. This overwhelming force of globalization manifests in almost every facet of human endeavor: in communications through satellite television; in economics with the virtual integration of the world financial system; and in consciousness, with people concerning themselves with issues like human rights and biodiversity in a way that transcends spatial borders. Such is the reality of globalization that much as enthusiastic

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anthropologists may try-fewer "lost tribes," removed from the rest of the world, remain in Mrica or elsewhere-remain to be discovered. Although globalization manifests itself in many ways, it is with the "globalization" (or to use the language of the discourse, "universalization") of human rights that my chapter is concerned. On no other theme is the "globalization of consciousness" more obvious and contentious than on the theme of human rights. Human rights have become a veritable battlefield where the tensions and contradictions of globalization have been elaborately played out in the debate over whether human rights are universal or whether they are culturally relative. Indeed, the debate over the universality or cultural relativity of human rights has for the most part of this century, dominated the global discourse of human rights. At the core of the debate is whether modern human rights conceptions are of universal character and applicability or whether they are culturally relative-that is, dependent on socio-cultural contexts and settings. Simply put: Are human rights of universal viability and applicability or are they better understood and evaluated within specific social and cultural contexts? What level of cultural specificity can be accommodated within the emerging global human rights regime to accord it cultural legitimacy within various societies? This debate precedes partly from the various international human rights documents, particularly the United Nations instruments on human rights, which, in spite of the obvious Western influence in their formulation, declare their contents to be universal, inalienable and cross-culturally valid. Also implicit in this debate is the tension between "collectivist" theorists who place the community above the individual in their conception of human rights and the "individualist" theorists who place the individual above the community. The contending arguments in the universality versus cultural relativity debate have been quite extensively examined elsewhere and it would serve little purpose to restate them in detail here. 1 The object here is to broadly review the discourse on the cultural relativism of human rights and the relevance of the Mricanist contribution to this discourse within the context of the globalization of human rights and the quest at enhancing the crosscultural legitimacy of the emerging universal human rights regime. This chapter seeks to outline some of the major arguments in the Mricanist discourse on cultural relativism with reference to their relevance in understanding the concept of human rights and its relationship with cultural orientations in particular societies, and specifically, the contemporary Mrican state.

Rights, Dignity, or Distributive Justice? It is significant that our discourse on the cultural relativity of human rights begins with a contextual definition of the meaning of human rights, for

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without a well-defined concept of human rights, it is indeed difficult to proceed to analyze the concept. What precisely are human rights? Is the meaning, which attaches to the term, definite or can it be validly subjected to varied interpretations without distorting its essence? Elementary as these questions may seem, they are at the core of most contemporary studies of human rights. Many writers have argued that although the broadly defined human values which underlie the concept of human rights may be universally shared, a distinction must be made between the moral standards of human dignity, which all cultures share, and human rights that are enforceable by individuals against the state. The concept of human rights, it is argued, is essentially a modern Western creation founded on historical developments of the Enlightenment period, the French and American Revolutions, and ultimately the 1948 Universal Declaration of Human Rights. Therefore, any reference to the concept of human rights before 1948 would be anachronistic. Bassam Tibi (1990) notes for instance that many scholars tend to confuse "human rights" for "human dignity." He states, that if one is talking about the latter, there is no doubt that fully developed notions of human dignity exist in many traditional non-Western cultures. However, the modern concept of human rights stems from the contemporary articulation of legal entitlement, which individuals hold in relation to the state. He goes further to point out that the absence of the concept of human rights in certain cultures and contexts is not peculiar to non-Western societies. Medieval Europe, like traditional Mrican or Asian societies also had no inkling of human rights in the modern sense. The main argument here is that the idea of human rights, as rooted in modern society is an entirely new concept, distinct from previous notions of human dignity. 2 Rhoda Howard (1990a,b), in response to arguments for an Mrican concept of human rights, states quite categorically that the Mrican concept of human rights is actually a concept of human dignity, that it defines the inner moral nature and worth of the human person and his proper relations with society. Human dignity and human rights are therefore not coterminous as dignity can be protected in a society that is not based on rights. In her words: There is no specifically African concept of human rights. The argument for such a concept is based on a philosophical confusion of human dignity with human rights, and on an inadequate understanding of structural organization and social change in African society. (1990b: 23)

Jack Donnelly (1982) gives the debate a whole new dimension when he distinguishes between the concepts of distributive justice and of human rights. He argues that distributive justice involves giving a person that which he is entitled to (his rights). Unless these rights are those to which the individual is entitled simply as a human being, the rights in question

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will not be human rights. In Mrica for instance, rights were assigned on the basis of communal membership, family, status, or achievement. These were therefore, strictly speaking, not human rights. Although it may be useful to distinguish between the abstract ideals of human dignity or distributive justice and the more precise legal principles of human rights, we must not overlook the close connection between these sets of concepts and the ways they reinforce each other. Indeed, we may argue that the whole debate over the distinction between human rights, human dignity, and distributive justice arises from a failure to appreciate and put in historical context the evolution of the idea of human rights. There has been a tendency by some scholars to conceptualize human rights within the narrow sense of modern legal language, the emphasis being on the strict legal definition of the term rather than the idea that underlies it. This approach is problematic because it tends to emphasize change while ignoring underlying continuities. A more historical approach to the study of the evolution of the contemporary concept of human rights will find no difficulty in drawing the link between traditional notions of human dignity or distributive justice and the modern idea of human rights which are, in fact, merely contextual reinterpretations of the age-long notions of defining human worth and value. The object is to understand and appreciate the distinct historical contexts in which this idea has manifested. Seen from this perspective, it becomes difficult to accept the view that the concept of human rights is a notion created only three centuries ago by philosophers in Europe and given a stamp of universal legitimacy in 1948. Rather, it becomes apparent that what was unique about the Enlightenment and the writings of the French and American Revolutions (now often identified as the origins of human rights) was not the idea of human rights itself but the discussion of human rights in the context of a formally articulated philosophical system. The argument that human rights are enforceable whereas the entitlements that derive from principles of human dignity are not also fails to recognize the need to place in social and historical contexts, the idea and meaning of rights. In traditional Mrican societies for example, there were no clear cut distinctions between religious values, moral precepts, and laws-and so the question of legal entitlement distinct from moral and religious considerations could not have arisen. These were all interrelated parts of a more or less homogenous cosmology. However, such traditional societies had their own legal institutions and law enforcement procedures, which, though different from those of present day states, were nonetheless effective within their social and political contexts. Thus, the rights and obligations which derived from such religious, moral and cultural values associated with human dignity in traditional society, (which were enforced for the benefit of both the community and the individual), can validly be considered the contextual equivalents of the modern concept of legal rights.

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This can provide a basis for the cross-cultural understanding of the contemporary meaning of human rights.

Human Rights and Cultural Relativity The philosophy of cultural relativism is neither new nor peculiar to human rights discourse. While several philosophers have argued the "ethical relativity" of human nature, social anthropologists for the most part of this century have been preoccupied with the discourse on the cultural relativity of social values, precepts, and norms. 3 Even the term "cultural relativism" has lately become controversial. Many of those who advocate more cross-cultural expression in the understanding and practice of human rights see themselves more as "cultural pluralists" rather than "cultural relativists." The latter term is seen as a form of typecasting or "human rights name calling" that has had the effect of stigmatizing those who challenge the universalizing trend of the human rights corpus (Mutua 2002). "Cultural relativism" is employed here without such biases. It is simply descriptive of the wide-ranging positions of those who critique the human rights corpus for what they consider its cultural exclusivity. In general, the doctrine of cultural relativity holds that moral codes and social institutions reflect a vast scope of cultural variability and that such variations should be exempt from the criticism of outsiders. The doctrine is founded on the notion of communal autonomy and selfdetermination, which holds that there is infinite cultural variability in human society and no absolutes. In specific relation to human rights, the doctrine of cultural relativism holds that different societies within different social and historical contexts have evolved unique attitudes to the concept of human worth, human dignity or human rights (Donnelly 1984). Claims of cultural relativism however, show a great diversity in meaning and substance. Therefore, any evaluation of such claims must be sensitive to this diversity. In general, proponents of the cultural relativity of human rights argue that human rights as conceived in the West are not necessarily applicable to Third World and non-Western societies because their philosophical basis is not only different but indeed opposite. Whereas Western conceptions are based on the notion of the autonomous individual, many non-Western conceptions do not know such individualism (Shivji 1989: 16). It has been frequently stated by cultural relativists, that the classical Western liberal notions of human rights emphasize the primacy of individual political civil rights while most non-Western, Third world traditions place greater emphasis on the community basis of human rights and duties, on economic and social rights and on the relative character of human rights. Marxist/socialist ideas on the other hand, highlight economic and social rights and duties that are grounded on collectivist principles. The cultural diversity reflected in these categories has proved a vexing

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issue for those approaching the study of human rights from a global comparative perspective. 4 In his discourse on the "non-Western viewpoint of human rights," Prakash Sinha argues that the current formulation of human rights contains three elements, which reflect Western values and makes it ill suited to some non-Western societies. First, the fundamental unit of the society is conceived as the individual, not the family. Second, the primary basis for securing human existence in society is through rights, not duties. Third, the primary method of securing rights is through legalism where rights are claimed and adjudicated upon, not through reconciliation, repentance or education (Sinha 1981:77). The universalism-cultural relativism debate raises a lot of theoretical questions, which have been approached by different scholars from various historical and legal perspectives. Lone Lindholt (1997: 26) has categorized the discourse on the universality or cultural relativity of human rights under various schools according to geographical and cultural boundaries. She contends that the tendency toward the more radical theory of universalism can be found among the Americans. Rhoda Howard (1990b: 12) whom she identifies as a representative of the American school, claims with particular reference to the Mrican context, that human rights ought to be universal although she also admits that seen in an empirical perspective, "cultural variations do indeed affect people's perception of human rights." James Nickel (1987: 44-45), in his theoretical study of the concept of human rights, similarly concludes that the claims of universality and inalienability of human rights are plausible for some specific rights but that strong claims of universality and inalienability were not valid for many other rights. Many who oppose arguments for the cultural relativism of human rights, fear that a relativist position condones or even approves of customs such as female genital mutilation, the subordination of women and minority groups, arbitrary killings, torture and trials by ordeal. It is also feared that recognizing the legitimacy of the cultural relativity of human rights will undermine the entire universal human rights movement. These fears have largely informed the tension between the doctrine of cultural relativity and international human rights. Against this background, Donnelly has categorized the doctrine of cultural relativism into strong cultural relativism and weak cultural relativism. Strong cultural relativism holds that culture is the principal source of the validity of a moral code or rule. In other words, the presumption is that rights and other social practices, values, and norms are culturally determined, but the universality of human nature and rights serves as a check on the potential excesses of relativism. Weak cultural relativism on the other hand, holds that human rights are prima facie universal, but recognizes culture as an important source of exceptions in the interpretation of

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human rights. 5 Donnelly's conclusion is that, rather than a wholly universal approach, human rights discourse should apply what he terms "weak cultural relativism," where culture is an important consideration without leaving out completely the aspect of universality (Donnelly 1989). In the same vein, Albert Tevoedjre (1986) declares that there are certain universally acceptable norms for the protection of people's rights and that these universal norms form a fundamental core of human rights. On their part, Lars Rehof and Tyge Trier (1990: 52) argue that empirically, there exists a core of universally applicable basic principles, which govern the relationship between the state and its citizens. To that extent, we can talk about some basic universal standards of human rights. At the same time however, they recognize that different human rights are considered important and fundamental at different points in time and under different circumstances. As may be expected, the debate on the universality of human rights principles has, more often than not, centered on the Universal Declaration of Human Rights (UDHR) and its subsequent conventions. While the ideological presumption of the universality of human rights principles may be the subject of contention, there seems to be more agreement on the point that certain human rights concepts have assumed universal validity with the introduction of the UDHR in 1948. However, even this assumption has its critics, perhaps the most famous of which is the American Anthropological Association (1947: 539) which in its oft quoted reaction to the draft proposal for the Universal Declaration of Human Rights in 1947 held that: Standards and values are relative to the culture from which they derive ... that what is held to be a human right in one society may be regarded as antisocial by another people.... If the [universal] Declaration must be of world wide applicability, it must embrace and recognize the validity of many different ways of life.... The rights of man in the Twentieth Century cannot be circumscribed by the standard of any single culture, or be dictated by the aspirations of any single people. (my emphasis)

Several scholars have since echoed this position. Antonio Cassase (1990), in his incisive theoretical discourse on the universality of human rights in relation to the UDHR, argues that the Universal Declaration and the two international covenants do establish human rights rules in universal scope but that since human rights are both conceived and observed differently, "universality is, at least for the present, a myth." What is evident from the trend of the discourse on the universality and cultural relativity of human rights is that it reflects a great diversity of the views of contributors. The debate spans from arguments for an ideal, ifnot utopian notion of absolute universalism, to arguments for a purely relativist view. Most writers have found it more useful to adopt a middle course approach. On the one hand, it is recognized that universality exists to some extent, at least in relation to some basic human rights concepts and princi-

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pIes, particularly those that border on the sanctity of human life and dignity. On the other hand, it is also accepted that some space must be left open to allow for cultural variations and adaptations of human rights norms. In effect, the legitimacy of the different human rights and the priorities claimed among them is necessarily a function of context. This indeed appears the most reasonable option. To enhance its legitimacy, the emerging universal human rights regime must draw upon the cultural peculiarities of each society. In one culture, the individual may be venerated as the primary bearer of rights, while in another, individual rights may be harmonized with those of the community. Yet, underlying these two conceptions must be recognition of the intrinsic value of the human being within the society. Thus, because different people in different parts of the world both assert and honor different human rights demands, the question of the nature of human rights, must to some extent, ultimately depend on the time, place, institutional setting and the other peculiar circumstances of each society.

"African Values" and the Cultural Relativism of Human Rights The developing world has set its imprint on human rights thought in the 1990s, both by making human rights more socially oriented and also by questioning the focus on the individual that has characterized the human rights discourse in the West. The arguments for the cultural relativity of "Asian values" and lately "Mrican values," in the conception and interpretation of human rights have been central to this trend. The discourse on the cultural relativity of human rights from the Mricanist perspective has attracted considerable attention although there remain differences in opinion on the articulation of the Mricanist position in relation to the contemporary human rights corpus. Issa Shivji (1989), in one of the earlier Mricanist contributions, argued that one can hardly talk of an Mrican philosophy of human rights because there is very little written by Mricans and Mricanist scholars on the conceptual and philosophical foundations of human rights in Mrica. What exists is simply an Mrican ethno-philosophy of human rights. In his view, the philosophical discussions, which may have certain relevance to Mrica, are largely Western and its Marxist critiques. Josiah Cobbah (1987: 309-10) expresses the same view when he argues that, despite the increase in the discussion of human rights in Mrica, very little exists in the form of literature that approaches the idea of human rights from an Mrican perspective. He insists that what most Mricans have written on the subject tends to be an attempt either to show that the Western concept of human rights exists in Mrican cultures or to reflect Western-style condemnation of the abuse of human rights in Mrica.

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It is significant to point out, however, that this position has changed since Shhji wrote in 1989 and Cobbah in 1987. Quite a number of works have recently been done by Mricans and Mricanists on the philosophy of human rights in Mrica (An Na'im and Deng 1990; Abayomi 1993; Mutua 1995). Besides, even the so-called discourse on "Mrican ethnophilosophy of human rights" has over the years provided a fitting basis for the articulation of what can appropriately be described as an Mrican philosophy of human rights. Indeed, several scholars have advanced, from a range of interdisciplinary perspectives, the arguments for a distinctive Mricanist perspective to the discourse on the cultural relativity of human rights. The central themes in these arguments have dwelt on the philosophical foundations of the Mrican concept of human rights and how this concept contrasts with the western notions and institutions, which were subsequently extended to the continent in the colonial era. To understand the Mricanist discourse on the cultural relativity of human rights in Mrica, however, it is necessary to draw attention once again, to the argument by some writers that the contemporary concept of human rights is a modern development which has its roots in the universal declaration of human rights and was thus alien to traditional societies in Mrica or elsewhere. 6 Some of these writers have suggested that the concept of human rights as legal entitlement, which individuals hold in relation to the state, simply did not exist in traditional Mrican societies. As indicated earlier, they argue that what is usually put forward as human rights concepts in traditional Mrica is nothing more than the notion of human dignity and worth which exist in all preindustrial societies. It is argued that all human societies including those in Mrica have gone through a stage when, because of the low level of productive forces, collective ownership of the means of production and the communal organization of society were necessary for subsistence (Eze 1993: 82). This "communal" social structure naturally allowed for the development of humanistic ideals that did not necessarily equate with the modern conception of human rights. Any argument for a traditional pre-colonial concept of human rights is therefore only a question of confusing "human dignity" with "human rights." Even at that, it has been further suggested that, to the extent that modernization or Westernization has reached into, and transformed traditional communities in Mrica, traditional approaches to guaranteeing human dignity for all their worth would seem objectively inappropriate for the modern Mrican nation state. To continue to base human rights policy on the "communal" model of traditional Mrica would be to ignore the changes that have occurred and are occurring in the way Mricans live. Another variant of this school of thought is the argument that traditional Mrica, as indeed most premodern agrarian societies, did not evolve perceptions of human rights because these societies did not recognize the concept of a "human being" as a descriptive category to which some

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inalienable rights were attached. Instead, persons were defined by social status or group membership. Thus, traditional societies generally did not recognize rights held simply because one is a human being (Donnelly 1982). The kind of social relationship between the state and the individual on which the concept of human rights is based was therefore never created within the context of such traditional societies (Mutua 1995). Human rights, were thus alien to traditional Mrican societies (as they were to feudal Europe), until Western modernizing incursions dislocated community and denied newly isolated individuals access to the customary ways of protecting their lives and human dignity.7 Indeed, human rights as defined by many liberal scholars, are understood as individual claims against the state as founded in the Universal Declaration of Human Rights and in this sense there is only one conception of human rights and that is Western (Shivji 1989: 16). In contrast to these positions, several Mrican and Third World writers have argued that the philosophy and conceptions of human rights are neither exclusive to Western liberal traditions nor relevant only with reference to post-1948 developments. They reject the notion that the concept of human rights, having been originated, developed and refined in the West was thereafter "transplanted" to Mrica and the rest of the world. This view has been variously described as paternalistic, inherently ahistorical and philosophically bankrupt. Asante, for instance, rejects the notion that human rights concepts are peculiarly or even essentially bourgeoisie or Western, and without relevance to Mrican and other non-Western traditions. Such a notion confuses the articulation of the theoretical foundations of Western concepts of human rights, with the ultimate objective of any philosophy of human rights, which is simply, the assertion and protection of human dignity on the basis of the intrinsic worth of the individual. This philosophy is an eternal and universal phenomenon that is applicable to western traditions as it is to Mrican and other non-western traditions (Hannum: 1979). Mahmood Mamdani (1990) and Paulin Hountondji (1988) both share this view. Mamdani argues generally that wherever oppression occurs-and no continent has had a monopoly over this phenomenon in history-there necessarily comes into being, a conception of rights. This is why, in his view, it is difficult to accept that the concept of human rights is a theoretical notion created only three centuries ago by philosophers in Europe. What was unique about the Enlightenment and the writings of the French and American Revolutions, (to which the origin of the contemporary concept of human rights is often ascribed), was the discussion of human rights in the context of a formally articulated philosophical system. As Hountondji puts it, Western philosophers: produced not the thing but discourse about the thing, not the idea of natural law or human dignity but the work of expression concerning the idea, the project of its

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formulation, explanation and analysis ... in short, a draft of the philosophy of human rights. (quoted in Mamdani 1990: 60)

The Mricanist approach to the discourse on the cultural relativism of human rights can therefore be broadly divided into two schools. The first of these is the less radical approach, which is ideologically closer to the dominant universalist schools of the West. Proponents of this school, while arguing the validity of a uniquely Mrican concept of human rights, also recognize the universality of a basic core of human rights. Kofi Quashigah (1991) for instance, concludes that human rights concepts, which are rooted in certain social facts that are peculiar to particular societies, cannot be expected to be universal. At the same time, he acknowledges that certain basic needs are indisputably universally ascribable to persons of every historical, geographical, and cultural background. The second school is in more radical opposition to the universalist approach. It seeks to fundamentally challenge the Western-oriented stateindividual perspective that otherwise dominates human rights discourse. The main argument here is rooted in a belief that the philosophical basis and worldviews of Western European and Mrican societies are fundamentally different, that collectivist rather than individualistic conceptions of rights and duties predominate in Mrica. Yougindra Khasualani (1983) and Makau Mutua (1995) are some of the writers in this category. The modern conception of human rights, they contend, contains three elements that are Western-oriented and makes it inappropriate to the Mrican and other non-Western contexts. One, the fundamental unit of the society is the individual, not the family or community. Two, the primary basis of securing human existence in society is through rights, not duties. Three, the primary method of securing these rights is through a process of legalism where rights are claimed as inalienable entitlements and adjudicated upon, not reconciliation, repentance and education. Against this background, Keba MBaye (1987:651) points out that traditional or precolonial Mrica knew of human rights adapted to the political and social situations existing in that epoch. These rights as recognized and protected, must be looked at within the context of societies that were atomized and hierarchical by a caste system and at the same time unified by mythological beliefs. Within these societies, the object of law was to maintain society in the state in which the ancestors had handed it down. The concept of human rights within such social context was thus necessarily communal and humanist, fostering mutual respect and a recognition of the rights and liberties of each individual within the wider context of the community. Makau Mutua's (1995) position is a similar one. He argues that an examination of the norms governing the legal, political, and social structures in precolonial Mrican societies, demonstrates that the concept of rights

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informed the notion of justice, which, though community centered, also supported a measure of individualism. 8 He argues further that in traditional Mrica, the concept of rights was founded not on the individual but on the community, to which the individual related on the basis of obligations and duties. Rights in this context included but were not limited to the right to political representation, which was often guaranteed by the family, age groups and the clan. Rather, the society developed certain central social features that tended to foster the promotion of both individual and collective rights. These included deference to age, commitment to the family and the community, and solidarity with other members of the community. The dominant social orientations toward rights emphasized the groupness, sameness, and commonality, as well as a sense of cooperation, interdependence, and collective responsibility. These ideals served to strengthen community ties and social cohesiveness, engendering a shared fate and a common destiny. In these circumstances, the concept of human rights did not stand in isolation. It went with duties. For every right to which a member of society was entitled, there was a corresponding communal duty. Expressed differently, the right of a kinship member was the duty of the other and the duty of the other kinship member was the right of another (Cobbah 1987: 321). Although certain rights attached to the individual by virtue of birth and membership of the community, there were also corresponding communal duties and obligations. This matrix of entitlement and obligations, which fostered communal solidarity and sustained the kinship system, was the basis of the Mrican conception of human rights. 9 It has been pointed out that the philosophy behind this concept of rights and duties is based on the presumption that the full development of the individual is only possible where individuals care about how their action would affect others. Thus, in contrast with the Western conception of rights, which conceives rights in terms of abstract individualism without corresponding duties,IO the dominant Mrican conception of human rights combines a system of rights and obligations, which gives the community cohesion and viability. This conception-that of the individual as a moral being endowed with rights but also bounded by duties actively uniting his needs with the needs of others-was the quintessence of the formulation of rights in precolonial Mrican societies and can provide a fitting basis for the construction of national human rights regimes in contemporary Mrican states. ll These arguments for a peculiarly communal Mrican concept of human rights, however, are confronted with their own theoretical and empirical limitations particularly in their relevance to the contemporary Mrican societies. Rather than the persistence of traditional cultural values in the face of modern incursions, the reality in contemporary Mrica-as it is in the rest of the developing world-is a situation of disruptive and incomplete

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westernization, "cultural confusion," or even the enthusiastic embrace of "modern" practices and values. In other words, the ideals of traditional culture and its community-centered values, advanced to justify arguments for the cultural relativism of human rights in the Mrican context, far too often, no longer exists. Although scholars have been at the forefront of exploring the cultural relativism of human rights in the Mrican context, the assertion of "Mrican values" gains prominence when it is articulated in the political rhetoric of Mrican leaders and elites. It has been suggested that in asserting these values, leaders from the continent find that they have a convenient tool to silence internal criticism and to fan anti-Western nationalist sentiments. 12 Some writers have even suggested that the picture of an idyllic traditional communitarian society, has been presented by Mrican rulers and elite "from Kaunda to Nyerere" only to hide and rationalize their own unbridled violations of human rights. In the scathing words of Rhoda Howard (1990b: 25; see also Howard 1984a,b): Some African intellectuals persist in presenting the communal model of social organization in Africa as ifit were fact, and in maintaining that the group oriented, consensual, and re-distributive value system is the only value system and hence it ought to be the basis of a uniquely African model of human rights. These ideological denials of economic and political inequalities assist members of the African ruling class to stay in power.

In similar vein, Donnelly has pointed out that arguments for the cultural relativism of human rights within the Mrican context are far too often made by urban economic and political elites who have long left traditional culture behind. Their appeal to cultural practices is often a mere cloak for self-interest and arbitrary rule. In traditional cultures, communal customs and practices usually provided each person with a place in society and a certain amount of dignity and protection. Rulers on the continent have largely undermined this traditional protection such that the human rights violations of most Mrican regimes are as antithetical to the cultural traditions that they idealize, as they are to the "Western" human rights conceptions that they despise. Donnelly (1984: 400) therefore cautions that: We must be alert to a cynical manipulation of a dying, lost or even mythical cultural past. We must not be misled by complaints of the inappropriateness of "western" human rights made by repressive regimes whose practices have at best only the most tenuous connection to the indigenous culture; communitarian rhetoric too often cloaks the depredations of corrupt and often westernized elite. In particular, we must be wary of self-interested denunciations of the excessive individualism of "western" human rights. 13

Howard and Donnelly are clearly, and perhaps quite justifiably suspicious of the political elite of Mrican countries who use the constant refer-

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ences to communal society and the primacy of socioeconomic well-being over civil and political rights, to mask systematic violations of human rights in the interests of the ruling elite. In sum, we can identify three levels of arguments in the Mricanist discourse on the cultural relativity of human rights. At the first level is the debate as to whether or not the roots and foundations of human rights conceptions are also to be found in the Mrican historical experience. On this, it is difficult to escape the conclusion that the extreme Mricanist argument for a distinctively communitarian Mrican concept of human rights which stands in contrast with the concepts and traditions of the West or the rest of the world, has its limitations. If anything, the notion of the absolute cultural relativism of human rights comes through as a misunderstanding inspired by cultural nationalism. What its proponents see as radically distinctive communitarian Mrican traditions and conceptions also clearly possess ideals that are universal. Much of the humanistic and communitarian values that have been exclusively ascribed to Mrican societies also generally apply to most preindustrial societies in Europe or Asia. 14 On the other hand, it is difficult to accept the equally extremist critique of some Western liberal writers of the Mricanist cultural relativism, to the effect that human rights are inherently universal concepts which have found expression only in the post-feudal state (in the case of Mrica, the post-colonial state), or that the concept of human rights was alien to specific precapitalist traditions in precolonial Mrica. This monolithic interpretation of human rights is unacceptable. While there may be a core of universal values, which reflect inherent human worth in various societies, the broad expression of these values must necessarily vary, not only in accordance with historical circumstances, but also from one social context to another. The central difference may lie in the question: "What is the basic unit of society?" Westerners would answer that it is the individual while the Mrican may answer that it is the extended family (Cobbah, 1987:319). Human rights are the heritage of all mankind and the concept of human rights has been developed, struggled for, and won by different people in different historical, political, social, and cultural contexts. These struggles and victories should combine to give our contemporary understanding of human rights its essence and universal validity. There is hardly any basis for the rather sweeping assertion that traditional Mrica or indeed any "premodern" society for that matter has made no normative contribution to contemporary Human Rights corpus. Indeed, as Minasse Haile (1984: 575) has argued: The fact that human rights have been part of western philosophic tradition from early times does not imply that non-western societies have no equivalent conception of human rights. Written treatises on natural law or natural rights were no prerequi-

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sites to conception about or commitment to human rights [elsewhere in the world].

The "African Cultural Fingerprint" The second level of the Mricanist discourse on the cultural relativism of human rights relates to the questions that have been raised over the validity and applicability to the Mrican context, of modern human rights conceptions, as developed and interpreted in the West. In other words, even though the modern thrust and substance of human rights may have their philosophical roots in Western societies, are they definitely applicable to contemporary Mrican states and societies? Several Western liberal scholars contend that since all Mrican countries have been or are modernizing on a western model which gives priority to the individual, the only conception of human rights which exists (i.e., the Western one) is of equal application to Mrican societies whatever their historical antecedents or cultural circumstances may be. Some Mricanists and proponents of cultural relativism have tended to agree with this. Edward Kannyo (1980), for instance, contends that to the extent that the Western model of the state has spread to other parts of the world, the factors which give rise to the need for constitutional guarantees and led to the evolution of the philosophy of human rights in the West have become equally relevant in other parts of the world. Some Mricanists, however, insist that in order to make it relevant to the circumstances in the continent, the content of universal human rights has to be tempered by specific Mrican cultural experiences. Essentially, this means that the content of human rights has to bear what Mutua (1995) has described as the "Mrican cultural fingerprint" which emphasizes the group, duties, social cohesion and communal solidarity as opposed to rigid individualism. This appears an eminently reasonable and practical approach to the issue for, indeed, one of the inadequacies of Western concepts and institutions uncritically adopted by most Mrican states at dawn of independence was that they borrowed little or nothing from the existing traditional norms and values. For this reason, some of these colonial-engineered concepts and institutions have continued to bear little or no relevance to the distinctive needs of the postcolonial Mrican state. This situation calls for a regime of human rights founded on the basic universal human rights standards but enriched by the Mrican cultural experience. It needs to be emphasized, however, that there are substantive human rights limitations even in well-established cultural practices. Cultural practices which were acceptable in times past under different social and historical contexts cannot always be expected to conform with established modern human rights orientations. For example, while slavery and trials by ordeal have been customary in many societies in Mrica as in other parts of

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the world, today these are cultural practices that cannot be justified on any grounds. The same applies to the practices of discrimination on the basis of sex, social status, caste or ethnic group, which were widely practiced, but are indefensible today. Yet, cultural relativism is a fact of human rights discourse and the peculiarities in cultural and ethical orientations invariably influence people's conception of rights and duties. For this reason, cultural differences may justify some deviations from universal human rights standards. However, cultural relativism must function as an expression and guarantee of local self-determination rather than as an excuse for arbitrary rule and despotism. Cultural derogation from universal human rights standards 15 must be founded on authentic cultural basis with adequate alternative constitutional and other legal provisions for guaranteeing basic human dignity where cultural orientations themselves fall short of these standards. 16

Reconsidering the "Full Belly Thesis" The third level of the argument in the Mricanist discourse on the cultural relativism of human rights stems from the tendency of some Mricanists and Mrican elites to stress the priority of social and economic rights over political and civil rights. The point of emphasis here is the Mricanist angle to this debate that seeks to justify the curtailment of civil and political rights in the interest of the collective social and economic development within the context of the post-colonial state. Julius Nyerere, the former president of Tanzania puts this position across quite graphically when he asks: What freedom has our subsistence farmer? He scratches a bare existence from the soil provided the rains do not fail; his children work at his side without schooling, medical care or even good feeding. Certainly he has freedom to vote and to speak as he wishes. But these freedoms are much less real to him than his freedom to be exploited. Only as his poverty is reduced, will his existing political freedom become properly meaningful and his right to human dignity becomes a fact of human dignity. (quoted in Shivji 1989: 26)

Another Mrican leader expressed a similar view when he opined that, "one man, one vote is meaningless unless accompanied by the principle of one man, one bread." The hub of these expressed sentiments is that given the peculiar constraints of poverty and underdevelopment in Mrica, economic and social rights must take precedence over civil and political rights or the state-individual perspective that otherwise dominates Western notions of human rights. This argument is often advanced as part of the larger thesis on the relativity of human rights. However, some Western liberal scholars in disagreement with this position have argued that political and civil rights are of as much significance as economic and social rights. They disagree with the argument that politi-

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cal and civil rights should wait until basic needs are secured, because civil and political rights are needed in order to implement reasonable development policies, to secure equitable distribution of wealth and promote economic growth. Civil and political rights are also needed to guarantee social and cultural rights and the maintenance of a stable social order necessary for society itself to exist. Howard (1984c: 467) has referred to the arguments for the primacy of economic rights by some Mricanists as the "full belly thesis." This thesis is that a man's belly must be full before he can indulge in the "luxury" of worrying about his political freedoms. The thesis is, however, in my opinion, a less than fair representation of the arguments of writers like Julius Nyerere. The reference point here is not so much a full belly as it is an empty belly. A man's belly need not be full for him to be concerned about his political and civil liberties, but it is important that it is not empty, either. Political and civil rights can best be guaranteed in a situation of relative economic and social stability where the people are guaranteed a basic level of well-being. This is particularly evident from the experiences in many post-colonial Mrican states where the level of poverty is so severe and the standard of living so low that it often undermines the democratic electoral process. In some Mrican countries, it has become common for poverty stricken rural voters to sell their votes for as little as a handful of salt or rice. For this category of Mrica' s poorest, the need for immediate survival surpasses any other long-term political or civil rights considerations. This, however, is not to suggest that political and civil rights are less significant than economic and social rights or that economic and social rights parameters should solely define the human rights aspirations of Mrican states. The point being made is that the economic versus political rights debate in relation to Mrica may not be quite as simplistic as Howard portrays it in her "full belly" thesis. The post-colonial Mrican state manifests certain developmental limitations and other peculiar characteristics that must be taken into account in any study that seeks broad interpretations of the conditions and prospects for human rights in the continent. For one, it is useful to recognize that unlike in the West, the Mrican state commands overwhelming power and influence which stands in rather marked distinction to the non-state sphere consisting of a largely undifferentiated and vulnerable peasantry. Under such circumstances, there are significant limitations to the level of political influence which civil society can or is in a position to wield without significant social and economic improvement. At some point in the discourse, the arguments for and against the Mricanist positions on the cultural relativism of human rights becomes something of a vicious circle, very much like the classical riddle of the chicken and the egg-which came first? Just as one may ask: Political rights and economic rights-which come first? Or: Individual rights and communal rights. Which should take precedence over the other? It is perhaps in the

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nature of the discourse that these questions will never be conclusively answered. Yet, as indicated earlier, one approach to addressing these questions would be to perceive human rights as a holistic and integrated concept in which civil, political, social, and economic rights constitute complementary aspects of the same broad concept. It is useful to realize that like individual and communal rights, both political rights and economic rights are interactive, interrelated and interdependent, not sequential. An Mrocentric conception of human rights is a valid worldview. Its significance to the discourse on the cultural relativism of human rights however, demands careful consideration. Rather than being the basis for abrogating or delegitimizing the emerging universal human rights regime, it should inform the cross-fertilization of ideas between Mrica and the rest of the world. The present challenge for Mricanist human rights scholars generally is to articulate for the international human rights community, an Mrican sense of human rights or dignity, which flows from the Mrican perspective, but one that the rest of the international community can also use. With the sanctity of Western individualist paradigms of human rights being increasingly questioned, the Mrican sense of community obligation has much to offer the international discourse on human rights, particularly in the promotion of social and economic rights.

Conclusion Cultural relativism is a fact of human rights discourse and the peculiarities in cultural and ethical orientations invariably influence people's conception of rights and duties. To this extent, cultural differences may justify some deviations from universal human rights standards. However, cultural relativism must function as an expression and guarantee of local self-determination rather than as an excuse for oppression, arbitrary rule, and despotism. In reality, the construction and definition of human rights norms are continuous and dynamic processes. As a dynamic process, the cultures and traditions of the world must compare notes, come to some agreement on what constitutes human rights, and seek how best these values can find some form of cross-cultural and universal legitimacy. The arguments for the cultural relativism of human rights are therefore useful to the extent that they call attention to the need for cross-cultural understanding and tolerance of differences. The great task, which confronts the international human rights movement, is how to explore and build upon the age-old processes by which different cultures have satisfied needs that we have come to identify as necessary for the nurturing of human dignity and human rights. By drawing from these varied cultural traditions, the emerg-

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ing international human rights regime may be expanded and its claim to universality vindicated in an increasingly pluralistic world order. In a final analysis, it is significant to note that the universalism versus cultural relativism debate over the legitimacy and priorities of human rights can be misleading. It is useful in so far as it calls attention to the ways in which the notions of liberty and individualism can be, and have been, used to rationalize the abuses of capitalism. It is also useful in so far as it highlights how notions of equality and collectivism can be, and have been, used as excuses for arbitrary and authoritarian governance. However, it also risks obscuring the essential truths that must be taken into account if contemporary studies of human rights are to be objectively understood and applied. Thus, in spite of the vast theoretical and conceptual divergence on the theme, it is useful to realize that the object of human rights discourse should be the quest for a reasonable and balanced approach to human rights, which recognizes the interplay between various cultural factors in the construction and constitution of human rights. There remains an urgent need to adopt a broader view of human rights, which incorporates diverse concepts and moral experiences. It will be easier to find some harmony around the globe under a particular human rights rubric once the existence of human pluralism has been recognized, understood, and accepted. The hope is that greater cross-cultural understanding will shed light on a common core of universally acceptable rights (Renteln 1985: 540). In closing, I find Raimundo Pannikar's (1982: 78-79) metaphor of the window particularly appropriate in illustrating the point which I argue in this chapter: Human rights are one window through which one particular culture envisages a just human order for its individuals. But those who live in that culture do not see the window. For this, they need the help of another culture, which sees through another window. Now, I assume that the landscape seen through the one window is both similar to and different from the vision of the other. If this is the case, should we smash the windows and make of the many portals a single gaping aperturewith the consequent danger of structural collapse-or should we enlarge the viewpoints as much as possible and, most of all, make people aware that there are-and have to be a plurality of windows?

The latter choice, it seems to me, would much better serve the cause of the global human rights movement.

Chapter 2

Toward a Theory of Applied Cultural Relativism in Human Rights N. Barney Pityana

Zimbabwean courts have recently handed down judgments that have gotten women's rights activists up in arms. Vennia Magaya sued her halfbrother for her portion of their late father's estate. The Supreme Court ruled unanimously that "the nature of Mrican society dictated that women were not equal to men. According to cultural norms, women should never be considered adults within the family, but only as a junior male or teenager." Justice Gibson Muchetere argued that customary law prevails over statutory law. The Legal Age of Majority Act, 1982, which accords majority status to men and women upon reaching the age of eighteen, did not apply to customary family law and, the judge continued, Zimbabwe's Constitution sanctioned discrimination against Mrican women in family matters. "Under customary law, women did not have a right to heirship and majority status would not give them that additional right." (Mail and Guardian, May 7,1999). In another case, Marita Ncube was jailed for eighteen months for arson. She had intentionally set her father-in-Iaw's house on fire because he insisted on having sexual relations with her. In the absence of his son and Mrs. Ncube's husband, who is a migrant laborer in Johannesburg, the father-in-law insisted on having his son's rights according to the customs of the Kalanga people. As he claimed: "it is my responsibility to look after my son's possessions including his wife until he returns from Johannesburg. It is customary that a father-in-law is required to consummate his son's marriage and no one is allowed to question it" (Mail and Guardian, June 10, 1999). Marita Ncube did. She went to jail because she insisted on her right to equality and to freedom of choice. A coalition of women's groups protesting the trend in the courts stated in 1999 that "what alarms us is that the Supreme Court reinstates the disadvantages and disabilities women suffered under customary law, which the

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legislature clearly intended to remove through the Legal Age of Majority Act." Susan Njani writing in Mail and Guardian Gune 10, 1999) surmised that "one section of the current Constitution prohibits discrimination on the grounds of sex, while another states that it is lawful to discriminate in areas of family law, customary law, inheritance, divorce or marriage." Two South African cases from the files of the South African Human Rights Commission are instructive. Mrs. Elizabeth Tumane belongs to the Bakgatla ethnic group. She is a member of the Jehovah's Witnesses. After her husband died she was required, according to ethnic custom, to undergo a rite of mourning. This entailed the practice of mogaga. According to the custom, she was confined to her compound because were she to socialize with the community, it is believed that she would bring misfortune to the community. She refused to do so, citing her religious beliefs. She challenged the ruling of the chief and the ethnic authority. In another matter, Ms Rakoma sought to enforce her rights to her inheritance after her parents died. She discovered that the Bafokeng "tribal" court had granted the parental estate to her nephew, her late brother's son, to her total exclusion. She contested the ruling. Through the intervention of the Commission, a higher tribunal of the "tribal" authority has reversed the decision of the lower court. It is apparent from these cases that international human rights norms and standards come into conflict with some African customary practices and traditions, especially in matters of family and religion. The purpose of this chapter is to explore the contours of legitimacy, examine the implications for human rights practices in Africa, and propose a theory of applied relativism in human rights policy and practice.

The Debate Universality is best stated in the Preamble to the Universal Declaration of Human Rights, which proclaims the Declaration as: A common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.

The basis for this assertion of universality is variously stated as founded on the fact of being human. This view is drawn variously from natural law, some principles of natural law, morality, philosophy or anthropology (Ghai 1999; Brown 1997; Freeman 1998; O'Sullivan 1998; Mutua 1996/7; van der Vyver 1998). It can be asserted confidently from these studies that all cultures everywhere have standard rules or practices that show respect for human beings; there are rules of natural justice and norms of behavior. In

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broad principles, therefore, all cultures should assent to the statement of the Universal Declaration that "All human beings are born free and equal in dignity and rights" to the extent that they can identify something of their own practices and norms in that statement. Human rights may not have been understood nor accepted in all cultures in exactly that terminology nor in the absoluteness of its application but a consciousness of the principles has a universal and cross-cultural ring to it. The relativist argument challenges the notion that any set of principles or beliefs can be capable of universal application. That view is supported by the principle that different cultures espouse different philosophies and values about the human condition. There cannot, therefore, be a commonly or uniformly applicable theory of human rights. Chris Brown (1997: 49) states this position forcefully as: "It is implausible to think that rights can be extracted from liberal polities, decontextualized and applied as a package worldwide. This is not simply because of international value-pluralism; it is decontextualization that is critical whether international or domestic." A number of variations of relativist arguments are identifiable. First, that as civilizations and cultures vary both in time and geographical location, so too will their lifeworlds vary. On this principle, international human rights standards are simply European or Western norms, which are being imposed upon all cultures everywhere for all time. Second, even if it was to be agreed that there are some human rights norms which have universal acceptance, it would be impossible to attach similar value or weight to any of them depending upon location and circumstance. Third, some though not all human rights norms do have universal acceptance; others are negotiable according to culture, history, or values applicable at anyone time or place. Fourth, in any event, the nature of society and of the world is that there is a multiplicity of cultures and values. These have to be respected and they provide a starting point to any understanding of societal norms. It is thus not necessary to assert a monochromatic society but to value difference. Each culture, therefore, has its own ways of interpreting and understanding universal norms. These must be viewed only in broad terms. There is value in seeking to understand the dynamics of different cultures and societies and opening up space for dialogue. This last, is a moderate version of relativism and it is predicated upon the notion that all human rights must be mediated through local understandings and interpretations. It would appear, therefore, that, although worded in universalist terms, international human rights norms are beginning to espouse the moderate version of relativism. Two examples. The Vienna Declaration and Programme of Action adopted by 172 member states of the United Nations in 1993 holds both the universalist and the relativist notions in tension. It states:

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All human rights are universal, indivisible, and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis. While the significance of national and regional peculiarities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms.

Of course, this formulation was seeking to address a number of concerns simultaneously. At one level, it sought to answer the advocates of a hierarchy of rights. It attacks the notion that there are some rights which have immediate application, enforcement, and justiciability, and that there are others that are mere directive principles of policy having no immediate applicability or enforceability. At another level, it meant to address the universalism vs. relativism debate. On universality, Vienna resorted to the European principle of margin of appreciation in order to take account of cultural specificities in the application of human rights norms. Of course, the principle of margin of appreciation in the European Convention is allowed in limited cases where state security is at issue. Since Handyside (1976), however, the principle has been used in a growing number of articles of the Convention: freedom of expression, family rights, liberty and security of person, equality, and so on. In the Lawless case, Sir Humphrey Waldock explained that the margin of appreciation "is that the government's discharge of these responsibilities is essentially a delicate problem of appreciating complex factors and balancing conflicting considerations of the public interest. "1 Macdonald (1993), stresses that the margin of appreciation must find the appropriate scope and ambit of justifiable variation in the application of the Convention depending upon the context and circumstances of each situation. In delineating the margin of appreciation, says Macdonald, "what can be hoped for is the enumeration of the many different factors that are relevant to the question of the proper level of deference, and an indication, perhaps through examples, of the sorts of contexts in which each of those factors has most weight" (1993:85). Unlike van der Vyver (1998:50), I believe that the doctrine of margin of appreciation opens the way to a moderate relativist position. It does so to a limited extent by giving due weight to the local context. At the same time, unless justifiable, it can be no basis for violation of the rights. Vienna also showed its acute appreciation of the context-specific application of human rights norms with reference to the 1993 Principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights (Paris Principles). The Paris Principles were designed to regulate the mechanisms for the establishment and operation of independent national institutions for the promotion and protection of human rights. In endorsing the Paris Principles as a framework and as providing

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guidelines for the appropriate and effective functioning of national institutions, Vienna also recognized "the right of each state to choose the framework which is best suited to its particular needs at national level. " The International Coordinating Committee of National Institutions, a voluntary association of national institutions, resolved to establish an accreditation system for national institutions so that there could be uniform founding principles and, broadly, ensure a similar standing for national institutions. It naturally required that, national institutions, for the purposes of accreditation, conform to the Paris Principles. At its seating in April in Geneva, the International Coordinating Committee of National Institutions (ICCNI) published guidelines and the list of accredited national institutions. Among those institutions that received conditional acceptance was the Consultative Human Rights Council of Morocco. The reason was that Morocco has five government ministers sitting in its national institution as ordinary members. The Paris Principles state that representatives of government departments, if included, "should participate in the deliberations only in an advisory capacity."2 Mrican delegates objected to this narrow interpretation because they held that the Committee failed to appreciate the specific context in which Morocco operated. Morocco argued that the presence of government ministers was essential in order to ensure better liaison between the government and the commission. It is argued that by applying the principle of margin of appreciation the ICC might have avoided the objections it raised. Cultural relativism must, therefore, be viewed as mutually interactive with universalism. Universal principles had their genesis in local situations and traditions. They will be considered an imposition only to the extent that nations are unable to identify something of themselves and their values in the principles. 3 All cultures contribute to the corpus of rights according to their own traditions and understandings. In that case they become simply executives of global governance, as O'Sullivan (1998) puts it. International standards are important because they settle some key principles and set norms and standards. And yet, national insights and experiences must continue to improve and perfect international standards, revise them or establish new ones as necessity determines. That constant interaction is due to the fact that ordinary human beings located in the real world also devise international norms. These norms will only have value to the extent that they meet human needs. This dynamism of rights must be viewed against the universally accepted notion that all culture is dynamic and, that intellectual property is subject to change and development. 4 Not all culture is uniformly good or bad. No culture can sit in moral judgment over others. Isaac Nguema (1998: 93), a former Chairman of the Mrican Commission, insists that there is no evidence of moral or intellectual superiority whatever the origins of specific theories of human rights, within the Western and some Asian codified traditions or the oral traditions of Mrica and

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indigenous Americas. All cultural practices and traditions operate within systems of dynamics which balance each other out and are usually selfcorrecting. For example, the Basotho under Moshoeshoe I had a proverb: Morena ke morena ka sechaba; sechaba ke sechaba ka morena (a chief is a chief by and through the support of the people, and a people is a people by and through the umbrella of security and good order provided by the chief). Typically, people changed their allegiances to a brother or relative of the chief or they overthrew the chief whenever he failed to provide security and justice for the people (Gill 1998: 22-25).5 Mindful of this caution, Yash Ghai (1999) argues that the environment around which human rights have been understood and applied has undergone change. The world has become more globalized, which suggests that there is a greater degree of cultural fusion and subversion than might have been contemplated before. This has sharpened the sense of neighborhood, the global village compelling cultures to coexist. "The key moral question of our time," writes Ghai (1999: 5), "is the basis on which diverse peoples can co-exist and interact." More specifically, the question is whether in this multi-cultural world a particular view or belief can be regarded as overriding international consensus on rights and values. There is a greater understanding, even if grudging at times, of the view that all rights must be considered holistically, as Vienna counseled. This sensitivity to the interrelatedness, indivisibility and interdependence of rights requires that there be greater appreciation of the need to balance competing rights and, in doing so, cultural relativity plays a part.

The African Charter and the South African Bill of Rights: A Comparative Critique The Mrican Charter on Human and Peoples' Rights was adopted by the Assembly of Heads of State and Government of the OAD in Kenya in June 1981 and came into force October 21, 1986. The Charter sets out a compendium of fundamental rights and freedoms as generally recognized in the extant international instruments. It also sets out duties and establishes the Mrican Commission on Human and Peoples' Rights as a body with a mandate to promote, protect and observe the application, enforcement and awareness of the Charter. The ideological foundation of the Charter is set out in the preamble. It affirms the principle previously set out in the Charter of the OAD that "freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the Mrican peoples." It also affirms the place of Mrican traditions and civilization which "should inspire and characterize their reflection on the concept of human and peoples' rights" and recognizes both individual and peoples' or collective rights. The Charter also insists on a holistic understanding of all rights when it says that civil and political rights cannot be dissociated

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from economic, social, and cultural rights in their conception-as well as universality-and that the satisfaction of economic, social, and cultural rights is a guarantee for the enjoyment of civil and political rights. The first substantive clause of the Charter is on the right to equality and non-discrimination. Among other grounds the Charter prohibits discrimination on the basis of ethnicity, color, language, sex, religion, and social origin. It also provides for freedom of conscience, free practice of religion, freedom of association and assembly. Article 18 is a transitional clause from individual to collective rights (Articles 19-24). Article 18 sees the family as the "custodian of morals and traditional values recognized by the community." The Charter then places positive obligations on the state to ensure the elimination of every form of discrimination against women and also ensures the protection of the rights of the woman and the child as stipulated in the international declarations and conventions. Chapter 2 elaborates the Duties of individuals toward their families, communities and the state. Although "claw-back" clauses limitations of the rights are spelled out, the Charter does not have derogations. If anything, the chapter on Duties represents perhaps the most elaborate limitations of the rights. For example, Article 27 (2): The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28: Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance. Article 29 (7) : To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation.

In interpreting the Charter, the Commission is required to take account of "international law, ... customs generally accepted as law, general principles of law accepted by Mrican states" (Articles 60 and 61). The first ever OAD Ministerial Summit on Human Rights in Mrica was held in Mauritius in April 1999. The Summit adopted the Grand Bay (Mauritius) Declaration and Plan of Action. One of the key achievements of the meeting was the extent to which it continued to hold on to what Makau wa Mutua (1996/7) calls the Mrican dialectic: the affirmation of international human rights standards and the assertion of Mrican values and civilization. Paragraph 4 of the Declaration states: The Conference recognizes that the core values on which human rights are founded, particularly (a) respect for the sanctity of life and human dignity; (b) tolerance of differences, and (c) desire for liberty, order, fairness, prosperity and stability are shared across cultures. In this connection, integrating positive traditional

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and cultural values of Africa into the human rights debate will be useful in ensuring their transmission to future generations.

Mrica has, therefore, identified an irreducible minimum of rights that belong to all humanity without distinction to their cultures or nationality. Chapter 2 of South Mrica's Constitution of 1996 is the Bill of Rights. Section 7 (1) states that the "Bill of Rights is a cornerstone of democracy." The Constitution also imposes a positive obligation on the state to "respect, protect, promote and fulfill the rights in the Bill of Rights." Chapter 1 of the Constitution, Founding Provisions, affirms the principle of the supremacy of the Constitution and the rule of law and that "law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." Section 1 is entrenched and may be amended only by a bill passed by 75 percent of the members of the National Assembly, the National Council of Provinces (NCOP) and support from 6 out of the nine provinces. Chapter 2, the Bill of Rights requires the assent of two-thirds of the members of the National Assembly, the NCOP and at least six provInces. The Bill of Rights has a section for the promotion of equality and prohibition of discrimination. Freedom of religion, belief and opinion, language and culture are also explicitly recognized. In addition, the Constitution states that persons belonging to cultural, religious and linguistic communities may not be denied the right to "enjoy their culture, practice their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations" (31). All these provisions, however, are subject to a limitation that they may not be exercised "in a manner inconsistent with any provision of the Bill of Rights." The Constitution also provides for the establishment of a Commission, which is yet to be formed. It also provides for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (Section 185). The Equality Clause (Section 9) defines equality as including "the full and equal enjoyment of all rights and freedoms.... " South Mrica has ratified CEDAW, the Mrican Charter, and ICCPR. The Constitution provides that "customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament" (Section 232). International agreements become law of the Republic once they are enacted into domestic law unless there are self-executing provisions in such agreements. Finally, the courts are required to prefer any reasonable interpretation that is consistent with international law. All this serves to emphasize that the current trend is toward an expansive and purposive interpretation of the laws, which the South Mrican courts have already began in the Makwanyane case. It must be stated in conclusion, though, that where there is a strong bias toward domestic law i.e, where conflicts are resolvable only by the preva-

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lence of domestic law, for lack of a legislative act to domesticate the international treaty, as in South Mrica and Zimbabwe, an anomalous situation might arise i.e, the Mrican Commission would declare a piece of legislation or action of government to be contrary to the Charter (Gonidec 1998: 24749). This could, however, be avoided, as is the case in South Mrica, by incorporating most of the principles of international law into domestic law.

Back to Basics It has been suggested, and I agree, that this subject tends to be dealt with in an excessively theoretical manner. 6 The proposal is that the debate can be concretized in an applied way by testing theory against practice using either country or theme case studies (Ghai 1999) For instance, the constitution of Zimbabwe contains a provision that outlaws discrimination on the basis of gender or sex, among other things. Section 23 (3), however, excludes marriage, divorce and "the application of Mrican customary law in any case involving Mricans." It would appear that on a simple reading of the law the case of Magaya was correctly decided. The courts in Zimbabwe display a particular conservativeness in matters relating to customary law, especially family law. Although this case subsequently resulted in an amendment by parliament, the courts have been progressive at times in civil and political rights-particularly in cases involving the death penalty (Catholic Justice & Peace Commission v. Attorney General 1993 (1) ZLR 242 (S) and the right of Zimbabwean women to bring their foreign husbands to reside in Zimbabwe (Rattigan v. ChiefImmigration Officer 1994 (2) ZLR 54(S). International treaties ratified by Zimbabwe under the authority of the president are not self-executing unless passed into law by parliament. But, Zimbabwe has ratified CEDAW, the Mrican Charter, and the other international conventions. Zimbabwe submitted three reports with respect to Article 62 of the Mrican Charter and the first report on CEDAW early in 2003. It is evident that the Zimbabwean law as it presently stands condones discrimination against women in family matters. It is also clear that such discrimination is demonstrably in violation of the international treaties to which Zimbabwe is a party. The Human Rights Committee has noted that, however varied the concept of family may be, "the rights of women under those systems of law must not be subject to discrimination and must be ensured on the basis of equality with men."7 In his judgment in the Magaya case,judge Muchechetere made reference to the fact that rural communities still practiced customary law and their values would be offended by any reckless disavowal of customs. Injustifying his ruling judge Muchechetere, said: "It must be recognized that customary law has long directed the way Mrican people conducted their lives and the majority of Mricans in Zimbabwe still live in rural areas and still conduct their lives in terms of customary law."

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This may suggest that in urban Zimbabwe if the case can be made that any particular custom no longer had credence, the court might decide otherwise! The Women in Law Working Paper argues with reference to Article 18(2) of the Mrican Charter: While traditional values of this sort include those existing in customary law, it seems that they are subject to recognition by the community. This is supported by the duty, established in Article 29 of the Charter, to preserve and strengthen positive African cultural values in relations with other members of society in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society.

The Working Paper would argue that in the Zimbabwe cases the judges have lost sight of the fact that the values that must be preserved are positive in the understanding of contemporary, progressive, modern society. Instead they have taken a static, conservative view of women and society. If this reactionary interpretation is allowed to become settled law, then the worst of Mutua's (1993: 8) fears about the Mrican Charter will become fulfilled. In South Mrica matters are easier to deal with in a groundbreaking case on freedom of religion (Wittman v. Deutscher Schulverein Pretoria and Others 1999 (1) BCLR 92 (T) ), the court took judicial notice of Article 2 (clause on equality) and Article 8 (on the right to free practice of religion). It also surveyed case law extensively from the United States, Canada, India, Malaysia, Germany, Australia, and Namibia. It eventually found no assistance to the peculiar circumstances of South Mrica's constitution-making processes. The facts are simple: plaintiff was a member of a voluntary association, which ran a public school. She objected to her minor daughter attending religious instruction classes and the obligatory morning assembly.Judge Van Dijkhorst who presided found that the Constitution allowed attendance at religious observances in state schools as long as it was "free and voluntary" and that any form of coercion would be unconstitutional. The religious activities at the German School were therefore not unconstitutional. The court found that by subjecting herself to the constitution of the school association, the plaintiff waived her right to exclude herself or her daughter from participating in obligations of membership, which she had freely chosen. She still had the option of choosing to renounce her membership if she so wished, but she chose not to do so. In respect of these educational institutions the fundamental freedom of religion of "outsiders" is limited; outsiders cannot join on their own terms, and once they have joined cannot impose their own terms. How then does this decision apply to the Tumane matter (the widow who refused to mourn)? The action was founded on the right to freedom of religion, belief, and conscience and the right not to be discriminated against on the basis of sex or gender (the custom of mogaga is confined to

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women). The case can, however, be distinguished from the facts of the Wittman matter. Mrs. Tumane belonged to the ethnic group. She cannot and did not wish to opt out of belonging to the ethnic group. It is only in those matters where the customs of the ethnic group clashed with her religious beliefs and the dictates of her conscience that she chose to abide by her own religious principles. If the Mrican Charter were to be applied, however, how would that affect her duty to the family and the ethnic group? Article 27 (2) states that: "The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest." The ethnic group sincerely believed that by her actions Mrs. Tumane threatened their collective security and the good order of the members of the community. Could it not be argued that the interests of the community could override those of the individual? Article 28 states that "every individual shall have the duty to respect and consider his fellow human beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance." The chief of the Bakgatla argued that by her obdurate actions Mrs. Tumane posed "an affront to their (the ethnic group's) dignity and (one of) contempt for their traditions." Advocate Patrick Mtshaulana argued that the "claw-back" clauses in the sections on cultural rights should not be interpreted simply as saying that everything else in the Constitution took precedence. "The way to resolve the problem," he argued, "is to weigh the competing rights and give them relative weight."8 He believes that the custom of mogaga is not in itself unconstitutional. Its practice may be unconstitutional when it is enforced. "Freedom of religion" the Constitutional Court has declared, "implies an absence of coercion or constraint and that freedom of religion may be impaired by measures that force people to act or to refrain from acting in a manner contrary to their religious beliefs."9 Once the Bakgatla Tribal Authority and the chief had confirmed that the practice of mogaga was "free and voluntary" then no cause of action arose. The question of the right of women to inheritance without discrimination is more complex and must await judicial consideration. On the right to equality, parliament is expected to pass legislation to prevent or prohibit unfair discrimination as required by Section 9 (4) of the Bill of Rights. Following Makwanyane O the courts have been taking a purposive approach to constitutional interpretation in order to achieve substantial equality. Drawing extensively from the Albertyn and Kentridge's (1994) article on the right to equality in the interim Constitution (Kathree 1995: 435) writes: A purposive, contextual approach to interpretation will not only "seek to maximize its coherence" and to promote the values of an "open and democratic society based on freedom and equality" but it will place equality "at the center" of consti-

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tutionalism in South Africa. It is this "appreciation of the centrality of equality to the task of democratic reconstruction" that guides us toward a substantive understanding of the right to equality in Section 8 of the Bill of Rights. They (Albertyn & Kentridge) argue that the purposive approach "reveals that within the constitutional vision of democracy lies an expansive and substantive conception of equality which encompasses the need to remedy inequality as well as remove discrimination."

It is evident, therefore, that South Mricanjurisprudence has now established the practice of "purposive" interpretation ensuring a contextualized understanding of the intention of the law. The purpose of the new law is stated as "to promote substantive equality."

Conclusion What then does this say about cultural relativity? I wish to reiterate that the polarization of the debate simply misses the point. In reality, international human rights standards make us all both universalists and relativists. Concerns about Western hegemony simply turn those of us who are from Mrica and elsewhere into reactionaries and we concede too much of the moral high-ground to those who, in any event, have perfected into an art-form the application of international human rights norms selectively. What demands attention, rather, are the ground-rules or guidelines for the application of contextualization or margin of appreciation principles. It seems possible and desirable to consider the Fuller rules in this regard. To ensure that all laws must be interpreted in a manner consistent with one another and where that is not possible, to interpret law in such a manner as to extend rights rather than to diminish them. If the Zimbabweanjudges had applied such activism, they would have avoided the apparent contradiction between the Constitution and the statute seeming to undermine the law. With these concerns in mind, Macdonald (1993: 118) proposes that the application of the rule of margin of appreciation in non-discrimination cases must take account of the following: "Does the discrimination have an 'objective and reasonable justification'; Does the discrimination pursue a 'legitimate aim'; and Is there a reasonable relationship of proportionality between the means employed and the aims to be realized?" I would argue that a theory of applied cultural relativism is unavoidable if we are to have a truly fair and just application and understanding of international human rights law.

Chapter 3 Globalism and Some Linguistic Dimensions of Human Rights in Africa Alamin M. Mazrui

Independence "negotiations" between metropolitan nations and their colonies led to the inclusion of some sort of "a bill of rights" in the constitutions of many postcolonial African states. At times, this constitutional provision was a demand of the colonizers in a bid to protect European settler communities against a possible backlash from the new dispensation of African majority rule. Most often, however, it was seen as a natural outcome of the rights discourse that had informed African nationalists in their struggles for independence. The language of rights during the struggle for decolonization was, of course, itself a legacy of the colonizers. To that extent, the phenomenon demonstrated once again the capacity of language to be appropriated and used for counter-hegemonic ends. Necessary as this discourse of rights was at that particular historicaljuncture, however, it was entrapped in Western liberal ideology and masked its class content and the class interests it was meant to serve. Just as colonialists neglected these rights when dealing with the Black people under their domination, therefore, African leaders of "independent" African countries soon began to violate them with impunity in a bid to safeguard and consolidate the economic, often kleptocratic, interests of an emerging national bourgeoisie. To a large extent, this situation prevailed until the early 1990s when a new wave of democratic struggles erupted, prompted by both local forces and international pressures. These developments have naturally raised new questions about the interplay between language, human rights, and the law. The rights discourse has been framed along the relativist-universalist axis whose two poles, of course, have a linguistic origin rooted in the works of Benjamin Lee Whorf (1959) and Noam Chomsky (1968) respectively. And it is to this dichotomy that we must first turn.

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Rights: Between Universalism and Relativism In spite of what ended up to be a compromised and rhetorical nature of rights in the immediate aftermath of independence, few Mrican leaders challenged the Western claim to their universality. An immense gap continued to prevail between what was contained in the Mrican constitutions and the political reality on the ground. And Mrican leaders felt no particular need to explain or rationalize this disparity (in the name of "relativism" for example) as long as the "West" continued to do business with them as usual. On the other hand, the West in general, and the USA in particular, seemed to be in no particular hurry to push for the aggressive globalization of rights. The period in the institutionalization of human rights occurring roughly between 1955 and 1967 was characterized by a series of "uncontroversial Western initiatives" which moved away from implementational concerns to documentation. The self-serving "developmentalist" logic prevailed in the West and among Mrican politicians, that at the early stages of independent Mrica's developmental efforts, the sacrifice of human rights at the alter of economic progress was a necessary evil. So universalization itself came to mean nothing more than the principle of inscribing rights into the constitutions of the independent nations of the world (Koshy, 1999: 2). Indeed the West even seemed willing to flirt with a certain degree of relativist interpretation of rights. Reflecting this political mood, for example, Smith Hempstone-a seasoned U.S. ambassador-once claimed: Western democracy is not going to work in Africa. Nor is government going to revert to a tribal framework. A new synthesis is in the making and something new in political organization is about to emerge, an "Afrocratic" system which utilizes the form but not the substance of democracy and draws much of its inspiration from indigenous institutions. This implies limited freedom of speech, irregular and semi-free elections, a one-party system and rule of a popular dictator. (1961: 640)

Hempstone was in fact indirectly counseling Western nations not to expect any more from Mrica in the area of democracy and human rights since its circumstances do not parallel those of the West and the needs and aspirations of its peoples and nations do not support the evolution of such a political culture ( 1961: 640-41). And it is a telling sign of the time that Hempstone contextualized these remarks in what he saw as the growing influence of Russia and "Red China" in Mrica and the continent's vulnerability to that influence due to its economic needs (1961: 637). This ambiguity of the West is directly tied to the Cold War-and the fear that too aggressive a push of a human rights agenda in its international relations may alienate allies and render them pawns of the Soviet Union. Additionally, some Third World countries which were now members of the

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UN Commission on Human Rights were pushing for the inclusion of economic and social rights as part of the establishment of an international human rights regime-the kind of rights which had the open support of Communist China and the Soviet Union and which were probably seen to be decidedly anti-capitalist in overall effect. The anti-communist thrust of Western policy thus allowed the West to tolerate and, often, support regimes with the most ugly record of human rights abuses as long as those regimes were pro-West. In the 1990s, during the so-called struggle for the second liberation in Mrica, a reversal of values, between universalism and relativism, began to manifest itself. The West became more uncompromisingly universalist. This is clearly demonstrated by Warren Christopher, then U. S. Secretary of State, in his address to the delegates of the 1993 Vienna World Conference on Human Rights. "I speak to you," he said to the delegates in the Plenary: as the representative of a nation "conceived in liberty" .... Over the course of two centuries, Americans have found that advancing democratic values and human rights serves our deepest values as well as our practical interests.... And to those who say that democracy is a Western contrivance, I say, you forgot to tell the people of Cambodia [who risked their lives by the millions to participate in the UNsponsored elections in the country.] ... That each of us comes from different countries absolves none of us from our obligations to comply with the Universal Declaration of Human Rights. . . . [W]e cannot let cultural relativism become the last refuge of repression. (quoted in Collins, 1994: 530)

And the same Smith Hempstone who saw only an Mrican-style democracy and human rights culture emerging out of Mrica, could now claim that it is profoundly racist to suggest that democracy is impossible in Africa. It will be difficult and messy. The process is likely to be a protracted one. But we owe it to ourselves as much as to Africans to support the pro-democracy forces in their struggle. The support of human rights and expansion of democracy will always be a component of U.S. diplomacy, but we need to decide how large a component it will be and then pursue it with logic and consistency. (1997: 327)

Hempstone envisions this possibility for democratic development in spite of his expressed conviction that the requisite conditions for democracy as set out by Carol Lancaster of Georgetown University-that is, "widespread literacy, a high per capita level of income, a sizable middle class, a vibrant and organized civil society, strong public institutions independent of one another, nationally based political parties with differentiated programs and a political culture of tolerance, debate and compromise"-are largely if not entirely lacking in contemporary Mrica (1997: 326-27). This seeming change on the part of the West is tied to its globalist agenda in the post-Cold War period. With the Communist threat safely out of the way, the human rights discourse became part of the U.S. foreign

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policy agenda to create, on a global scale, the political environment necessary for the success of neoliberalism and its market oriented principles designed by the United States and the international financial institutions that it practically dominates. Expectedly, then, the U.S.-imposed demands on vulnerable societies for "political liberalization" have gone hand-inhand with stringent requirements toward "economic liberalization." And the more that political consciousness in the rest of the world is numbed not to think of the possibility of other alternatives to the "world capitalist system," the more the West regards the development as the ultimate triumph of democracy and freedom. This new political posture of the West should not mask the fact that it will go all out to support the violation of that same freedom and democracy it purports to advocate if such a violation is deemed to be in the best interests of its global capitalist agenda. We know, for example, that since the end of the Cold War the Islamic world has come to be seen as the greatest threat to the West's neoliberalist doctrine. In Algeria, for example, "Western governments acquiesced with a military coup which overthrew an elected government" only because it was strongly Islamic in orientation (Acharya 1995: 168). As Chomsky (1991: 130) has observed with regard to the United States: human rights have only an instrumental function in the political culture, serving as a weapon against adversaries and a device to mobilize the domestic public behind the banner of our nobility, as we courageously denounce the real or alleged abuses of official enemies.

Human rights concerns thus become no more than tools that are galvanized periodically in the interests of power. In reaction to increasing Western pressures for human rights observance, some Mrican leaders went more and more relativist, reaffirming with even greater radicalism one of the main reasons that inspired the birth of the Banjul (Mrican) Charter on Human and Peoples' Rights which was conceived just at the time when the Communist edifice was collapsing and the Cold War coming to an end. This reason is the principle that Mricans needed to develop "a scheme of human rights norms and principles founded on the historical traditions and values of Mrican civilizations rather than simply reproduce and try to administer the norms and principles derived from the historical experiences of Europe and the Americas" (Okoth-Ogendo 1993: 76). And the more the West seemed to push for a universal standard of human rights, the more it was regarded as a "cultural absolutist," and the more sections of the Mrican elite reacted from a relativist position. These changes demonstrate that, in spite of their apparent incompatibility, relativist and universalist viewpoints actually represent two sides of the same political-ideological coin. In their origins, both relativism and univer-

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salism propounded an essentially progressive, anti-imperialist message in the sense that they desired to reaffirm the dignity of the human being and to discredit the racist assumptions inherent in Eurocentric pre-twentieth century theories. If relativists sought to reject a hierarchical ordering, and insist on the equality of cultures, universalists were in support of one of the Enlightenment's most cherished ideals-universal human identity. But these political sentiments have not been borne out by the experiences in Mrica. On the contrary, these experiences have demonstrated how the ahistoricity of both relativism and universalism has often militated against their progressive intentions, rendering each one of them a potential tool of both oppression and liberation.

Imperial Languages and Rights Consciousness As the struggle over the meaning of human rights continues, howeverwith some arguing that, in fact, human rights consciousness in Mrica predated European colonialism-there has been the question of the role of imperial languages in the promotion of human rights consciousness within Mrica. Mter all, the entire discourse on human rights, even for those who advocate a relativist position, has been embodied in the European linguistic idiom. Does the language itself in which rights are articulated matter in rendering them more universalistic or more relativistic? This is an issue that, in the Mrican experience, goes back at least to Alexander Crummell (1969), the pioneer pan-Mricanist. Seeing Mrican languages as lacking in "clear ideas of Justice, Law, Human Rights, and Governmental Order, which are so prominent and manifest in civilized countries" (1969: 20), Crummell proceeds to outline the many progressive credentials of English. In his words, the English language is characteristically the language of freedom. I know that there is a sense in which this love of liberty is inwrought in the very fiber and substance of the body and blood of all people; but the flame burns dimly in some races; it is a fitful fire in some others; and in many inferior people it is the flickering light of a dying candle. But in the English races it is an ardent, healthy, vital, irrepressible flame; and withal normal and orderly in its development. (1969: 23)

Following this determinist line of reasoning on the relationship between language and human rights culture, Crummell continues to argue: Once more I remark, that the English language is the enshrinement of those great charters of liberty, which are essential elements of free governments, and the main guarantees of personal liberty. I refer now to the right of Trial byJury, the people's right to participation in government, Freedom of Speech, and of the Press, the Right of Petition, and Freedom of Religion. And these are special characteristics of the English language. (1969: 25)

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For Crummell, then, the Black "race" had everything to gain in the development of the rule and culture of law by embracing the English language. Linguistic nationalists like Ngugi wa Thiong'o and Mazisi Kunene have often argued that the (re) centering of Mrican languages in the daily lives of the Mrican peoples was crucial to their mental liberation from the cognitive fetters imposed by European languages. Mricans can establish democratic and human rights traditions only if they are willing to reengage with the conceptual universe of their indigenous languages. Crummell, on the other hand, was proposing quite the reverse. It is English that would provide continental Mricans with the kind of mental liberation from the confines of their "primitive tongues" necessary to launch them into the civilized world of Democracy, Liberty, and the Rule of Law. Coming from a different angle altogether, Ali Mazrui too has tried to highlight the crucial role played by the English language in the formation of political and national consciousness in Mrica and in the emergence of modern Mrican politicians. The overall record demonstrates, according to Mazrui, "the revolutionary impact of the English language on the intellectual and governmental experience of the Mrican people in different parts of the continent" (1975: 102). In the process, the English language became the main medium for the articulation of Mrican moral demands and rights. This influence of English related not only to those territories which had no lingua franca apart from the language of the imperial power, but also to countries with a wide-spread lingua franca which could conceivably rely much less on English for their political, mobilizational needs. Indeed, in such cases, the English language is said to have extended its impact to the political vocabulary of indigenous languages: As political activity became more complex the need for a new language to cope with it became more pressing. Basic notions like "vote," "local government," "responsible government" and "constitution" sometimes needed to be rendered into African languages. It should be pointed out here that although the temptation to borrow the available English terminology must often have been considerable, there were occasions when this was resisted and a word was coined from another language. (Mazrui, 1975: 99)

But even in such cases, the impulse to seek a new word from another language is said to have been inspired, ultimately, by a new political idea that had come with the English language. The relationship between language and law, however, must take into consideration the duality of roles of both law and language. The law can inevitably serve a dual role of command and of protector of rights. Similarly, language can serve as a medium of command or as a medium of rights. An imperial language in the colonial context inevitably begins much more as a language of command than as a language of rights. In their own

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metropolitan nations, of course, imperial languages were media of both command and rights for the respective European peoples. But in the colonies it took a while before the colonized subjects looked to the imperial languages for the articulation of their own moral demands and rights. To take the example of Britain, in particular, while in policy making it was not entirely insensitive to some basic human rights of her subjects, it did not encourage discourse on human rights and civil liberties within the colonies until late in the colonial period. That is why English remained for so long a language of command rather than a language of rights within the Empire. In the legal system also, in the colonies the domain of rights was initially relatively narrow. But as the imperial system was liberalized, law as command began to find a new equilibrium with law as rights. In all phases of transition the English language was the primary medium of both command and rights. If the imperial languages have fostered certain notions of rights and promoted a certain degree of human rights consciousness, however, they have done so within the confines of a western liberal doctrine, a doctrine, which it can be argued has not always been in the best developmental interest of Mrica. Is it possible that these languages, operating as they do within the current global imbalances of power, are in fact transmitters of a kind of discourse that precludes from the realm of the conscious the possibility of any other alternative system capable of reconfiguring the human rights agenda in a way that can be truly liberative for the continent? A particular attribute of the so-called "second liberation" of Mrica is the centrality of the westernized, professional middle class-academics, lawyers, clerics, journalists, and so on-which is competent in and feels comfortable with the imperial languages. Its members rightly oppose the relativist articulations of those in power in their individual nation-states as a camouflage of otherwise repressive practices. In the process, however, they espouse a universalism on the basis of terms of reference established by the neoliberalist order. It is no wonder, then, that this class is constantly seeking the patronage of the West (which the West, of course, is only too happy to provide) and to celebrate the likes of Smith Hempstone as heroes of the Mrican democratic struggle! And because they take for granted the necessity of imperial languages in governance, they preclude the great majority of Mricans from participating in the rights discourse and ensure, subsequently, that such a discourse will remain prisoner to a neoliberalist orientation. The linguistic enclosure of the Mrican middle class through the instrumentality of the imperial languages, then, acts as a barrier toward the reconceptualization of human rights. It renders more difficult the development of a new perspective that, in Issa Shivji's words, involves "an ideologi-

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cal and theoretical break with the dominant discourse of human rights" (1989: 72). This claim, of course, is not to deny the transformability of imperial languages to serve counter-hegemonic functions. It is rather to affirm that, at this particular historical juncture, such a linguistic transformation is unlikely to come from the ranks of the professional middle class traditionally associated with the imperial languages. It is only by involving the mass of the Mrican peoples, whose proficiency is tied to the indigenous Mrican languages, as full and equal partners in the struggle to challenge the semantics of the dominant discourse and to inscribe new meanings and uses, that a counter-hegemonic discourse has the potential to arise. The question has also arisen as to whether the primacy of imperial languages has itself caused a curtailment of legal and political rights. The paradox, then, is that while the imperial languages may have introduced Mrica to certain new concepts of rights, they themselves are often impediments to the realization of the very rights they may have helped to initiate. In South Mrica two imperial languages came to serve drastically divergent roles. Mrikaans (linked to Dutch) was widely perceived by people of color as a language of command. English, on the other hand, was accepted widely by the same people of color as a language of rights. Concepts like democracy, self-determination, human rights, and civil liberties reached the South Mrican peoples partly through the English language. Yet even in South Mrica the question nevertheless persists as to whether the English language becomes an impediment to the rights it espouses itself. Is Mrican self-determination hampered by the primacy of European languages in Mrica? Is the rule of law compromised when the Euro-imperiallanguages marginalize indigenous Mrican languages? Not using indigenous Mrican languages in the legal process is damaging not only to the rule of law but also, of course, to the indigenous languages themselves. The languages are marginalized in some of the fundamental areas of society-law and order, governance, and civil liberties. In some circumstances, indigenous languages are condemned to being languages of command rather than languages of rights. This happened to Kiswahili in Uganda, first under Idi Amin's military rule (1971-79), and then under Tanzania's military occupation of Uganda (1979-81). Kiswahili was widely used to order the population around. In Buganda especially, Kiswahili was viewed much more as a language of command than as a language of rights. Northern Uganda was more ambivalent about Kiswahili in these periods.

Between Linguistic Rights and Legal Rights Within the more general pool of cultural rights we may distinguish a more specific category that is purely linguistic. Linguistic rights may take the form of the "right of language (s)" or the "right to language (s)." The for-

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mer refers to the right of each and every language in a multilingual society to exist and the equality of opportunity for it to develop legal and other technological limbs and to flourish. Government policies that deliberately seek to suppress some languages-as was the case in Ethiopia under Emperor Haile Selassie, or in Malawi under President Kamuzu Bandawould be in violation of the "right of language(s)"; so would policies that deprive certain languages of material and logistical opportunities for development and modernization. Ngugi wa Thiong'o, the internationally acclaimed Kenyan writer, can be described as an advocate of linguistic rights in this specific sense of the right of language(s) as defined above. His Gikuyu journal, Mutiiri, is an exercise in linguistic vindication intended to demonstrate that Mrican languages, too, have the capacity for abstract, intellectual, and scientific thought. But it is also a forum that provides the Gikuyu language with the opportunity to grow in a particular direction. Sometimes colonial-cum-missionary policies were more sensitive to the right of language(s) than many post-colonial Mrican governments have endeavored to be. There were some serious attempts to codify some Mrican languages and standardize them, in an attempt to augment their capacity for growth and development. Missionary establishments were sometimes involved in preparing Mrican languages for new functions in society in a way that has been virtually unmatched in Mrica's post-colonial experience. In many instances, therefore, post-colonial governments in Mrica have been more guilty of violating the rights of indigenous languages than were the colonial predecessors. We talk of the right oflanguage(s) as a collective right. Its violation automatically affects entire linguistic communities. The right to language(s), on the other hand, is more of an individual right. Within a particular linguistic constellation, it refers to the right to use the language one is most proficient in, as well as the right of equal access to the language(s) of empowerment and socio-economic advancement. A policy that prevents a Yoruba person from using the Yoruba language in the legislature, for example, would be in violation of that person's right to language. If-for political, economic or other reasons-a person is denied access to a language, a language variety, or language skill that is crucial to her/his ascending above the poverty level, then her/his individual right to language has been violated. Colonial governments in much of Mrica were often more guilty of violating the right to language (s) than the right of language(s). Mrican students were often punished for using their mother tongues, for example, within the school compound. There was some control over how large a population of Mricans should be allowed to acquire English, and how much English they should be allowed to acquire, at a time when the language

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was becoming increasingly critical for upward socio-economic mobility. All these were instances of violation of the right to language(s). There is, of course, an obvious link between the right oflanguage(s) and the right to language (s). The violation of the collective right to a particular language to exist, for example, necessarily encroaches on the individual right of access to that language. That is why linguistic revivalist movements are, in a sense, struggles over linguistic rights. There is also an interconnection between linguistic rights and some other kinds of rights. Certain political and economic rights, for example, are dependent on the promotion of certain linguistic rights. As indicated earlier, an English-only policy that denies people the right to use their first languages in the legislature, for example, also limits the political right to parliamentary participation of those who lack proficiency in English. Linguistic rights also interact with legal rights, and especially the rights of litigants intended to ensure a degree of fair play in the legal process and in the administration ofjustice. The right of an arrested person to remain silent, and the right of an accused person to legal representation are examples of rights that are exclusively legal in a narrow sense of the word. Legal rights that usually make explicit reference to language include, of course: 1. The right to personal liberty, which stipulates that an arrested or detained person should be informed, in a language (s) he understands, of the facts of, and grounds for, herIhis arrest or detention. 2. The right to a fair hearing, under which provision, a person charged with a criminal offence is entitled to detailed information, in a language that (s)he understands, of the nature of the offence. The interplay between language and the law that is implicit in the provisions of both these rights-the right to personal liberty and the right to a fair hearing-continue to raise fundamental questions about the administration of justice in contexts where the majority of those criminally charged, the poor-at a time when poverty itself is becoming increasingly feminized-are linguistically barred from acquiring a knowledge of their most basic legal rights.

On the Rule of Law: Between Imperial Tongues and African Languages Whatever one might say about the linguistic origins of human rights consciousness in Mrica today, then, the continued reliance on imperial languages may itself have become a primary cause in the failure of democracy and human rights culture to take root in the continent. Every right, every civil liberty, every law in the constitution has to be interpreted in terms of

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its meaning in the ex-colonial languages. African constitutional law is almost entirely Eurocentric in this linguistic sense. Precisely because of the excessive centrality of the imperial languages, African languages have remained marginalized, and their relationship to noncustomary law has been marked by a state of relative divergence. Of course, all societies assume that for the law to enjoy adequate majesty, some social distance has to be cultivated deliberately. The British, for example, developed a tradition ofjudges wearing wigs, and lawyers wearing black robes. Both the British and the Americans introduced the language of "Your honor" (and, in the case of the British, "My lord") when addressing judges. Moreover, legal language in the West has often included direct Latin words and phrases and an even larger number of Anglicized Latinisms. Phrases like post mortem, sub judice, de jure, and de facto have become commonplace. What all this means is that some degree of social distance from ordinary language is not only inevitable but has often been deliberately cultivated to give the law greater judicial majesty. But there comes a time when the majesty of the law goes too far and becomes the alienation of the law from the people. The role of imperial languages in the judicial systems of Africa constitutes such an alienation of the law. The British wigs still adorn African judges; the British black robes still give solemnity to African lawyers. The Latin phrases and Anglicized Latinisms still abound in Africa as in the West. And on top of all that, the imperial languages themselves continue to be fundamentally alien in virtually all African countries. This is more than social distance for the law. The "majesty" of the law crosses the line into stark alienation from the people whom it seeks to serve. As Alwi Shatry (1998: 3) comments with regard to the situation in Kenya: The primary language of African post-independence constitutions is the colonial one. In Kenya, a Swahili version would seem only incidental, while no version in Kenya's many other vernaculars exists. This inevitability implies the necessity of acquiring a functional Anglo-literacy for a Kenyan to become informed of his basic rights. The constitution can therefore become a formal document of alienation by articulating rights and obligations of a people in a language incomprehensible to many of them.

The relationship between imperial languages and the law almost throughout Africa, in other words, is one of maximum convergence. This lingo-legal equation has certain adverse implications for the rule of law in much of Africa. The problem begins with the practice of linguistic exclusion that is prevalent in virtually all African national assemblies entrusted with the making of the law. By linguistic exclusion I mean the policy that, intentionally or inadvertently, seeks to keep out some languages from certain domains of society. In most African countries, the imperial languages are the primary media of national legislatures. They are

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a fundamental requirement for participation in parliaments and, except in a few cases, no place is allocated for Mrican languages. This practice of linguistic exclusion has a dual effect on the lingo-legal configuration. First, it denies Mrican languages the opportunity to develop a legislative register that is compatible with the prevailing parliamentary traditions. Discussions on parliamentary bills and parliamentary procedures are conducted almost exclusively in imperial languages. There is the persistent anomaly that the majority of the constitutions are in imperial languages, languages spoken by very few of the citizens governed by those constitutions. The linguistic gap between the constitution and the citizenry deepens the remoteness of the constitution, and may be a factor in the perceived irrelevance of the constitutional order in most Mrican countries. It is extremely rare that Mrican constitutions are available in Mrican languages. Most Mrican languages, therefore, have remained poor in constitutional vocabulary, lacking even such basic terms as "fundamental law," "the bill of rights," "the right to privacy," "civil liberties," or "secular state." Citizens of the United States of America are constantly bombarded with terms like "separation of church and state" and "the First Amendment." How many Mrican languages can even translate such concepts? The exclusion of Mrica's indigenous languages from the legislative process, therefore, has contributed to the acute state of divergence between these languages and the law. Mrica may be paying a higher price for this Euro-constitutionalism than Mrica realizes. The fact that the Mrican constitutions are almost exclusively in European languages inherited from the colonial tradition may have slowed down the development of a new constitutional culture in Mrica. Mrican citizens are not learning to think in constitutional terms partly because they live in political systems that stifle the development of indigenous constitutional vocabulary. This divergence of language and law may have created a conceptual void in the intellectual universe of the average citizen. The second effect of the practice of linguistic exclusion in Mrican parliaments is that it has denied the majority that lack proficiency in imperial languages their democratic right of participation in the formulation of the laws. Can Mrica really talk of democracy as "rule by the people" when the majority lack the opportunity to participate in making the very laws used to govern them, or cannot even understand what transpires in their own parliaments? In the words of Ngugi wa Thiong'o (1998: 92), there can be no democracy where a whole people have been denied the use of their languages, where they have been turned strangers in their own country. The peasant and worker in Africa have been denied participation in discourses about their own economic, political and cultural survival. ... In other words, any search for a

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new social order within an African nation will have to address the language question.

The right of participation in Mrica's law-making bodies, therefore, has been closed to the majority of citizens precisely because their languages have been denied a role in these institutions. With respect to language and the legislative process Tanzania and Kenya offer somewhat different examples from the rest of Anglophone Mrica because of the special place of Kiswahili within their borders. In both countries Kiswahili is a dynamic trans-ethnic language used as an additional language, to one degree or another, by a plurality of citizens. In addition, its initial history as the language of Islamic law and jurisprudence in East Mrica, and the more recent efforts of Tanzania and, to a lesser extent Kenya, to modernize the language, have endowed Kiswahili with an appreciable wealth of legal terms to augment its potential as a language of parliamentary discourse. And this is a potential that has been recognized by both Tanzania and Kenya. In Tanzania, the parliament (Bunge) has indeed been completely Swahilized since the Arusha Declaration of 1967. This Swahilization of the legislative process in Tanzania has resulted in greater democratization, partly because it has made possible a wider participation of its citizenry in the Bunge. The use of Kiswahili has made it possible to mobilize more people into the law-making process of the country. This has in turn helped to enrich the language in terms of human rights, legal, and constitutional vocabulary. A more inclusive parliamentary system often enriches the language in which it conducts its business. Across the border in Kenya, English continued to be the exclusive language of its parliament until 1974 when the country's first president, Mzee Jomo Kenyatta, ordered the instant use of Kiswahili as the exclusive language of parliamentary debate. But since President Daniel Arap Moi came to power in 1978, the Kenyan legislature has been a bilingual one, using both English and Kiswahili in its oral deliberations. Although Kiswahili is now one of the languages of debate in the legislature, however, the legislation itself continues to come before parliament written exclusively in the English language. Documents written in English could now be the subject of debate either in English or Kiswahili. For those choosing to use Kiswahili, then, this anomaly between the written word and oral practice has created complications of its own, from phrase to phrase, clause to clause. The official version of the constitution as fundamental law in Kenya, therefore, continues to be in the English language. A constitutional point which comes before the courts has to be resolved by interpreting phrases and words in the English version. What a particular clause of the constitution means can be resolved by a judge who understands no Kiswahili at all.

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Indeed, the judicial system of Kenya is based on the assumption that many of the most senior judges might be completely illiterate in Kiswahili. The language requirement for candidates standing for parliamentary elections in Kenya has been adjusted to reflect a more bilingual character of the house. The original requirement at the time of independence was competence in the English language. Since 1974, however, candidates are required to demonstrate their competence in both English and Kiswahili. In the Kenyan situation, then, every Member of Parliament needs a capacity to read English but not necessarily to speak it, and a capacity to understand Kiswahili but not necessarily to read or even speak it. The legislation continues to come before parliamentarians written in the English language, while the debate, which follows, may be conducted in Kiswahili or English. Partly because both English and Kiswahili continue to be necessary qualifications in the Kenyan parliament, however, the decision to make Kiswahili one of the media of parliamentary debate has had less effect on broadening participation than it might have had. If linguistic qualifications for membership of the Kenyan parliament had been based more purely on competence in Kiswahili, this would immediately have broadened the number of potential legislators. This follows from the simple statistic that the number of Kenyans who are competent in Kiswahili is several times greater than the number of those whose competency is in both English and Kiswahili or is restricted to the English language. The full Swahilization of the Kenyan parliament would, therefore, have democratized the legislative process considerably and made the right to participation broader in scope. In any case, Tanzania and to a lesser extent Kenya have been able to demonstrate the potential of an Mrican language, Kiswahili, to playa significant role in the legislative system. In the process the language itself has been enriched, and more citizens who seek participation in the legislative assembly have come to rely on its widening horizons. But it is not only in their communicative capacity that Mrican languages can potentially widen political participation across the lines of class. It is also the Mrican languages, especially the lingua francas among them, that have the greatest capacity to consolidate national and regional markets, mobilize labor at the national level, disseminate information to the mass of the people on issues relevant to economic production, and assist in reducing dependence on the West. All these potential roles of Mrican languages may contribute to strengthening the economic foundation of democracyi.e. the efficiency of the system of production, distribution, and consumption of material goods and services. Mrican lingua francas can also serve an important integrative function, both at the lower horizontal level and at the vertical level. Such integration is necessary for the social foundation of democracy and the rule of law: the construction of a nation whose people can have a profound agreement on

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the fundamentals of their society. And, while Mrican languages may not have introduced the essential notions of liberal democracy to the national elites of the various Mrican countries, they are indispensable in adapting these notions to local conditions and conveying them to the people. The divergence between Mrican languages and the law is encountered with even greater tragedy in the Mrican courtrooms. In most Anglophone Mrican courts, for example, English is the official primary medium ofjudicial proceedings. In Kenya, for instance, Cap. 8 of the Judicature Act, Section 198(4) of the Criminal Procedure Code and Section 86(1) of the Civil Procedure Act all indicate that English shall be the language of the High Court and Court of Appeal. In all such instances, then, an accused person who does not understand English is automatically at the mercy of the interpreter who, in the Mrican context, is likely to have received little or no training in the skill of interpretation. The enormity of this problem in Mrican courts of law is captured by Ngugi wa Thiong'o in the following words: I want you to imagine a peasant or worker in a court of law accused, say, of murder. He is confronted by, say, an English-speaking judge, an English-speaking prosecutor, and an English-speaking defense attorney-and of course an English-speaking interpreter. Lawyering is really an exercise in words and definitions. Even the slightest nuance in a word or sentence can be crucial in determining the outcome of a case. Yet the victim is completely outside the linguistic universe of the justice system about to determine whether he will die or live or spend his life in prison. His plea of innocence or guilt becomes a plea only when put in a language he does not write, speak, or understand. (1998: 90)

And even though Ngugi has consistently referred to this linguistic victim of the law as "he," the overwhelming evidence seems to suggest that women suffer this kind of victimization to an even greater degree partly because, in most instances, they have had more limited opportunities to acquire the imperial language. With regard to this process of court interpretation, there is often a false assumption that the interpreter is unobtrusive-a neutral, or even passive verbal representative of participants in the courtroom, whose presence does not have an impact of its own on the progression of a judicial event. But as Susan Berk-Seligson has convincingly demonstrated, this prevalent judicial assumption about court interpreters is simply not true: The court interpreter plays a far more active verbal role than the system could ever imagine.... The interpreter's verbal role is very much tied to the linguistic control of "legitimate" participants in judicial proceedings, a degree of control that is tantamount to linguistic coercion. (1992: 156)

From the point of view of the accused in many parts of Mrica, this problem is aggravated by the fact that (s) he has little freedom of choice of interpret-

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ers. Thus, not only is (s)he not in a linguistic position to relate to the process of herIhis own representation, herIhis own position or innocence may have no real bearing on the outcome of the case. The clash between indigenous and Euro-imperial languages has also been central in the jury system and system of assessors. What languages were the jurors and assessors listening to from the witness box? What difference did the interpretation of evidence make to the jurors and assessors? What impact did the linguistic divergence have on whether or not evidence allowed for "reasonable doubt?" Mter all, if there was indeed a reasonable doubt, the legal process is supposed to acquit the accused. Linguistic confusion can make it hard to ascertain if there is indeed reasonable doubt. Equally important in the judicial process is the distinction between the oral medium and the written word. In most Western countries there are court reporters that are charged with the responsibility of making verbatim transcriptions of legal proceedings. The basic assumption here is that verbatim recording of trial proceedings exerts a profound influence on the administration of justice, and that without it the ability of an appellate counsel to protect the basic rights of hislher client is seriously impaired. There is thus the presumption that the written word is merely a modal replica of the spoken word, and that writing down "exactly" what has been said can make an accurate record of an oral event. It is now widely understood, however, that in any movement from the oral to the written, even in the so-called verbatim transcription, certain discrepancies are bound to occur between the spoken language and written language. Some of these are directly related to differences that are inherent in the spoken and written languages. The two are bound by different discourse cultures. The notion of presupposable truth arising from the kind of abstraction and objectification engendered by written communication, for example, is more difficult to attain in oral communication. Truth in the oral tradition is seen to emerge from the ongoing process of creative use of speech and from the ongoing force of rhetoric itself. Other discrepancies are due to the cultural climate within which court reporters operate and, more particularly, to the beliefs and attitudes which reporters hold about language and about their profession. Despite these discrepancies, however, there is little doubt that, as a way of promoting the ideal of accurate recording of proceedings, verbatim transcription has advantage over freer transcription. Yet it is precisely this more liberal form of court recording that prevails in much of Mrica. What appears in the written record, therefore, may be at great variance with the oral event. And the consequences of this kind of reporting may be even worse when it seeks to record interpreted speech from one language to another. The question of language use in the courts of law in Mrica brings us back to the Eurocentricity of much of Mrica's inherited legal order. To the

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extent that language is an aspect of culture, the predominance of European languages in Mrican courts renders the Mrican judiciary culturally Eurocentric. But language is cultural not only referentially in terms of what it expresses, but also ideologically in terms of how it is reflected upon by its speakers. This is the realm of linguistic ideology-the sets of belief about language held by its users as a rationalization or justification of perceived language structure and usage. And in this regard, Michael Silverstein (1979: 194) has suggested that "people not only speak about, or refer to the world 'out there'-outside of language-they also presuppose (or reflect on) or create (or fashion) a good deal of social reality by the very activity of using language." Some of the research in this area has concentrated on the way in which the use of language in legal arenas not only restructures the relationship of interacting parties, but also contributes to the (re)structuring of legal ideologies. Bernard Weissbourd and Elizabeth Mertz (1985), for example, have attempted to demonstrate that the subconscious reflection on language structure by native speakers and the structure of discourse in the courtroom ultimately affect legal ideologies in a culturally circumscribed manner. Weissbourd and Mertz begin with the premise that the Anglo-American legal system, which has been inherited throughout Anglophone Mrica, is biased toward minimizing the role of context in the decision-making process. It concentrates, rather, on rules deductively applied and upon rules specifying prerequisite elements of situations. It is a system that favors abstractness with a tendency to perceive legal rules as part of a fixed system that can be applied to statically conceived facts. Extending this proposition to language, Weissbourd and Mertz (1985: 649) argue that whereas "in its appellate courts, in its law schools, in the way its lawmakers talk about law, the Anglo-American system contrasts a system of rule with unanalyzable contextual factors, legal systems of other cultures tend to look to the actual dynamics of contextual (linguistic) interaction for underlying truths." But precisely because of the written-Eurolinguistic bias of the Western legal system which much of Mrica has inherited from the colonial experience, many litigants who are bound to the oral-indigenous linguistic tradition are precluded from making any real contribution to the (re)construction of the legal process. Mrica's legal ideology continues to be overwhelmingly Eurocentric partly because, linguistically, it continues to marginalize the less Europeanized members of society and those who are best placed to contribute toward its Mricanization.

Conclusion Several United Nations instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic,

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Social, and Cultural Rights, recognize an indispensable link between human rights and political participation. The full and equal right of participation is central to the realization of equity and justice at both the national and international planes. A resolution of the 1980 UNESCO General Conference advocates that participation of citizens at the grassroots must be "regarded both as a human right and as a means for the exercise of human rights" (Nanda 1985: 298). The anomaly in much of Mrica, however, is that the very forums of participation in national decision-making are exclusionary in design partly because they are conducted in languages which the majority does not understand. The discourse on rights as a universal attribute that has gained new momentum in the West has coincided with the increasing globalization of the English language, with America as its motive force. As the language conquers new frontiers, it also seeks to promote a culture of rights that is narrow in scope, western in orientation and homogenized in overall substance. This, after all, is in the best interest of neoliberalism at the present historical juncture. In its agenda for the wealthy few to circumscribe the political rights and civil powers of the many, neoliberalism "works best when there is formal electoral democracy, but when the population is diverted from the information, access, and public forums necessary for meaningful participation in decision making" (McChesney 1999: 9). As much as the West may seem to advocate liberal democracy in Mrica, it will stop short of including a linguistic rights agenda, which may center indigenous Mrican languages in any serious way. For such linguistic indigenization may ultimately have important implications for the democratization of information, knowledge, and meanings and for the revolutionary potential inherent in such a process. As the English language continues to entrench itself in the Mrican soil, it has continued to encourage linguistic attitudes and linguistic policies that further marginalize Mrican languages. As a result, the law itself has become excessively Eurocentric, both linguistically and culturally, further alienating the majority whose conduct it seeks to regulate and who are, in any case, better placed to Mricanize it. These policies and attitudes have had negative implications for the administration ofjustice and the formulation of laws. And they have continued to interfere with people's rights-from the right of participation in parliament to the right of fair hearing in the courts of law. One of the most important linguistic rights provided in virtually all the Mrican constitutions is that of the freedom of speech. It is through this right that individuals can make their own contributions to the (re)shaping of their community and the laws and legal systems that govern them. Yet the kinds of exclusionary linguistic policies prevalent in Mrica, which are being further consolidated by the forces of globalization, seriously constrain the exercise of this right. For, when the law insists on a particular

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European language in parliament and the courts of law, when the majority can only communicate through the intermediation of a third party, when the standards of linguistic propriety in legal bodies are unfamiliar to the majority, then what we have is not freedom of speech, but the denial of voice. And such linguistic denial is, ultimately, a form of excommunication that deprives individuals of their right to participate in turning the rule of law into the democratic principle that it ought to be. A paradigmatic linguistic shift to Mrican languages may go a long way in liberating the discourse on human rights from its liberalist and neoliberalist confines. The situation may be equated with the liberation of European philosophy from the fetters of Latin as the medium of philosophical discussion in the eighteenth century. This was at large also a liberation of philosophy from the Christian church and its dogmas. Philosophy was now no more principally restricted to a Latin-speaking elite; through a shift in the use of language (which had to do with a shift of power constellation) it opened up for secular topics and social contexts. The educated Latin-speaking elite of philosophers lost its unifying scientific language, but the gain on the other hand was ultimately much higher: in switching philosophy to the regional languages a social interplay and discourse could more directly take place. Academic philosophy was now, at least in principle, more generally accessible, even to the illiterate, to whom the texts could be read. (Kresse 1999: 28-29)

In a similar vein, by making the law accessible to those who do not speak the imperial languages, and by providing space for them to participate in the formulation of the law and inscribing meaning in the process, the discourse on human rights in Mrica may itself be freed from its neoliberal trappings and open new spaces for new inscriptions and alternatives to emerge in the Mrican conscious as real possibilities for the continent in the new millennium.

Chapter 4

The Rule of Law and Sociopolitical Dynamics in Africa Ada O. Ol