Human Rights in Africa

Contemporary Debates and Struggles

Eunice N. Sahle

• Publisher: Palgrave Macmillan
• Year: 2019
• Print ISBN:
  9781137583130
• eBook ISBN:
  9781137519153
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

This edited collection explores key human rights themes and situates them in the context of developments on the African continent. It examines critical debates in human rights bringing together conceptually and empirically rich contributions from leading thinkers in human rights and African studies. Drawing on scholarly insights from the fields of constitutional law, human rights, development, feminist studies, public health, and media studies, the volume contributes to scholarly debates on constitutionalism, the right to water, securitization of development, environmental and transitional justice, sexual rights, conflict and gender-based violence, the right to development, and China's deepening role in Africa. Consequently, it makes an important scholarly intervention on timely issues pertaining to the African continent and beyond.

© The Author(s) 2019

Eunice N. Sahle (ed.)Human Rights in AfricaContemporary African Political Economyhttps://doi.org/10.1057/978-1-137-51915-3_1

Begin Abstract

1. Introduction

Eunice N. Sahle¹

(1)

University of North Carolina Chapel Hill, Chapel Hill, NC, USA

End Abstract

In the post-World War II period, human rights discourse has increasingly become a salient feature of national, regional, and global political and other dynamics. At the global level, since the emergence of the Universal Declaration of Human Rights (UDHR) on December 10, 1948, the United Nations (UN) has generated numerous normative instruments geared to enabling the realization of human rights. As scholars such as Micheline Ishay have demonstrated, these developments, including the emergence of the UDHR itself, have been influenced by numerous historical and conjunctural factors including constitutive tenets of the world’s dominant religions, intellectual debates, political and economic projects of institutions of global governance, regional human rights developments, trends in the world economy, and democratic and human rights struggles by citizens in specific geographies. ¹ In terms of the African continent, its regional interstate body, the Africa Union (AU), ² and its predecessor, the Organization of African Unity, have adopted various human rights instruments. ³ For example, in 2005, the AU’s protocol on women’s rights entered into force following its adoption in 2003. ⁴ At the national level, countries such as South Africa and Kenya have in recent decades adopted constitutional frameworks underpinned by strong Bills of Rights.

While the preceding developments are notable, human rights discourse has a long and diverse history (James 2007). Further, like other discourses, the emergence and evolution of human rights has not been a unilinear and unproblematized process. Historically and in the contemporary era, the other side of these developments has been contestation about the meaning, relevance, and assumptions about human rights. In debates about human rights in the eighteenth century—particularly in response to the French democratic revolution—Jeremy Bentham declared them as “rhetorical nonsense,—nonsense upon stilts” (1998, 62). ⁵ His utilitarian based critique of human rights was not the only one articulated during that period. Women’s human rights scholars and activists challenged the gendered conceptualization of human rights in the constitutional frameworks that emerged in parts of Europe in the wake of eighteenth-century democratic revolutions.

A critique of human rights during that period is evident in the work of French women’s human rights activist Olympe de Gouges. In response to what she considered as male-centric underpinnings of the 1789 French Declaration of the Rights of Man and Citizen, she generated her own Declaration titled, “Declaration of the Rights of Woman and Citizen [1791].” ⁶ While the latter was characterized by tensions, ⁷ it nonetheless made an important feminist intervention in debates, as she stated: “man alone has raised his exceptional circumstances to a principle. Bizarre, blind, bloated with science and degenerated—in a century of enlightenment and wisdom—into the crassest ignorance, he wants to command as a despot a sex which is in full possession of its intellectual faculties; he pretends to enjoy the Revolution and to claim his rights to equality in order to say nothing more about it. ⁸ For her gendered critique of the prevailing human rights norms embedded in the 1789 Declaration, the French government labeled her as a “counter-revolutionary” and “unnatural woman” and killed her in 1793. ⁹

Historically, human rights discourse has not only neglected its gendered foundation, but also the racist practices of dominant power structures. Demonstrating the intersecting forms of dispossession and acts of human indignity that African American women faced in the United States in 1851, the human rights activist Sojourner Truth stated: “That man over there says that women need to be helped into carriages, and lifted over ditches, and to have the best place everywhere. Nobody ever helps me into carriages, or over mud-puddles, or gives me any best place! And ain’t I a woman?” ¹⁰ Moreover, even in the context of democratic and human rights revolutions and the emergence of liberal ideals in Europe in the seventieth and eighteenth centuries, leading intellectuals and other dominant actors supported European colonial projects. These developments for example resulted in the colonization of most parts of Africa in the nineteenth century. In the main, the meaning of “human” underpinning international human rights norms has had a checkered history, as Ishay demonstrates when she poses the question “Human Rights for Whom?” in her seminal study of the emergence and evolution of human rights debates and practices in different historical moments (Ishay 2004).

For some scholars, the universalistic assumptions underpinning international human rights instruments, such as the UDHR, have been an area of intense contestation. From a relativist school of thought, N. Berney Pityana, for example, argues that such assumptions are problematic for they ignore the cultural and philosophical diversity that mark human societies and inform their ideas “about the human condition” (2004, 42). Thus, for Pityana, while underpinned by universalistic assumptions, “international human rights” are provincial in nature for they are rooted in “European or Western norms” (ibid.). Other scholars focusing on universalism–relativist debates, such as Rhonda Howard, call into question the static representation of and uncritical approach to local cultural traditions and philosophies, and simplistic representations of what is constructed as the West and “others” by some relativist scholars. ¹¹

While acknowledging limitations of the international human rights regime, particularly as it pertains to the question of international “cultural legitimacy,” Adullahi Ahmed An-Na‘im cautions against dismantling the legacies it has established (1990, 355). To address some of these limitations, An-Na‘im calls for the interpretation of contemporary “provisions” of the international human rights regime and the development of “appropriate literature sensitive to the need for cultural legitimacy” (ibid.). In his view, such a project of cross-cultural analytical dialogue can systematically address some of the issues that have hindered the cultural legitimation of the international human rights regime (ibid.).

An-Na‘im is not alone in calling for cross-cultural dialogue on human rights. Such concerns characterize Charles Taylor’s work that explores the “conditions” for generating “a genuine, unforced international consensus on human rights” (1999, 101). Such efforts would entail the diverse “groups, countries, religious communities, [and] civilizations” that mark our world agreeing on “certain norms that ought to govern human behavior,” while drawing on their own conceptual foundations to justify them (ibid.). Reaching such a consensus about norms is of course difficult, as Taylor’s work indicates. Nonetheless, his work and that of An-Na‘im offers philosophical and insightful analytical openings on ways to address some of the tensions underlying the universalistic–relativist debates. Further, it is important to note that, while there is a tendency to equate cultural relativist approaches to human rights with the global South, this phenomenon manifests itself globally in the ideologies and practices of social actors committed to protecting and reproducing their political, economic, and socio-cultural privilege (Oloka-Onyango and Tamale 1995). ¹² Such relativism can function to protect and normalize present political, socio-cultural, and economic inequalities in a given country, both in the global South and North (ibid.).

For some scholars, the question of realization and implementation of human rights is crucial to debates pertaining to human rights. Arguing along these lines, Susan James posits that the granting of rights to “people” who are not in a position to realize them represents “merely rhetorical gestures” and that “such empty beneficence” is a form of insult “to disadvantaged individuals and communities” (2005, 79). The question of implementing human rights is also central to Makau Mutua’s 2016 book. While acknowledging the importance of human rights norms and the power dynamics marking their emergence in a given historical moment, Mutua calls attention to the importance of their enforcement (ibid.). From his perspective, the establishment of enforcement strategies and targets is crucial if a given human rights mechanism is to achieve legitimacy. According to him, important as the establishment of human rights norms are, their “observance” and “implementation” are what indicates whether they “were worth formulating in the first place” (2016, 11). While not neglecting the question of implementation, Amartya Sen contends that the “unrealizability of any accepted human right, which can be promoted through institutional or political change, does not, by itself, convert that claim into a non-right” (2004, 320). Overall, the origins, evolution, scope, and underlying ideas of human rights remain highly contested, even as human rights norms at the national, regional, and global levels continue to be generated in the twenty-first century. Such contestation is crucial in the field of human rights and should not be a source of “embarrassment” (ibid., 323). Further, such contestation is part of “public reasoning” (ibid., 322), an important bedrock for human rights theorizing and practice (see generally, Sen 2004).

Human Rights in Contemporary Africa: A Brief Introduction

This volume’s point of departure is that contestation is a vital feature of scholarly, civil society, and public policy debates pertaining to human rights. From its perspective, contestations about human rights norms and their developments, some of which are discussed in various chapters in this volume, are crucial because “open critical scrutiny is essential for dismissal as well as for defence” of any human rights instrument and its underlying philosophical assumptions (Sen 2005, 161). Such contestations illuminate the contributions and limitations of a given human rights mechanism. Nonetheless, the aim of this volume is not to explore all questions concerning human rights in contemporary Africa. Rather, it has two primary aims, which we hope will generate insights in ongoing debates relating to human rights in contemporary Africa and elsewhere. First, it explores key developments in Africa such as the emergence of new democratic constitutions’ orders, the rise of China, struggles for sexual minority rights, transitional justice mechanisms, and acts of terrorism and their implications for human rights concerns. Its second objective is to interrogate human rights norms with a focus on a range of questions, including, but not limited to, Africa’s contributions to the emergence of international human rights norms.

To systematically meet its aims, the book is organized into two major parts. Its first part, which is composed of five chapters, focuses on diverse developments in recent decades on the African continent and their implications for human rights. The volume’s second part explores various human rights norms such as freedom of expression and the right to water, among others. In addition, it discusses Africa’s contributions to the evolution of norms in human rights law and international humanitarian law. In light of its aims, the volume generates important insights that should be of interest to scholars, civil society groups, and public policymakers.

Following this introductory chapter, the volume’s second chapter by Willy Mutunga, a leading scholar of human rights and law, and Kenya’s former Chief Justice and President of the Supreme Court, begins its analysis with a brief discussion of the rise of the country’s human rights movement. Mutunga highlights this movement’s engagement in a range of human rights struggles: “struggle for the rights of the youth, women, persons with disabilities, children, the aged, minorities, pastoralists, hawkers, peasants, workers, artisans, artists, writers, students, intellectuals, refugees, internally displaced persons, and many other groups” (p. 21, this volume).

The role of African intellectuals in human rights debates and struggles is part of Mutunga’s chapter’s concerns. According to him, these intellectuals have, for example, interrogated the conceptualization of human rights. For example, his work with Alamin Mazrui has highlighted what they term as “Euro-centeredness” in dimensions of the international human rights regime (Mutunga and Mazrui 2002, 128–32). Demonstrating the dialectical dynamic of human rights work in Africa, their work has co...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• Part I. Contemporary Developments and Human Rights
• Part II. Human Rights Norms: Emergence, Features and Tensions
• Back Matter