HUMAN RIGHTS QUARTERLY Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State Bonny Ibhawoh* We must go backto listening. More thought and effort mustbe given to enriching the human rights discourse by explicit reference to other non-Western religions andcultural traditions. By tracing the linkages between constitutional values on the one handand the concepts,ideas,and institutions which arecentral to [various] traditions, the baseof support for fundamental rights can be expanded and the claim to universality vindicated. MaryRobinson, UN High Commissioner for Human Rights, Human Rights at the Dawn of the 21st Century' I. INTRODUCTION The polarized debate over the universality or cultural relativity of human rights seems to have given way in recent years to a broadconsensus that there is indeeda set of core human rights to which all humanity aspires. The discourse has gradually moved away from whether contemporary human rights are truly universal and therefore cross-culturally applicable to whether they are, as cultural relativists argue, merely the product of Western * Bonny lbhawohis a lecturer in African history and international development studies at the EdoState University in Nigeria and currently an Izaak Walton Killam scholarat Dalhousie University in Canada.He was formerly a guest research fellow at the Danish Centerfor Human Rights, Copenhagen and an associate member of the Center forAfrican Studies of the School of Oriental and African Studies at the University of London. He is also a research consultant with the Constitutional Rights Project-a human rights NGO based in Nigeria. The author is grateful to the Danish Center for Human Rights, Copenhagen, under whose Research Partnership Program part of the research forthis paper was undertaken. Thanks also to Mark Gibney, Katarina Tomasevski, Lone Lindholt, and Eva Maria Lassenfor their comments on earlier versions of this article. 1. Mary Robinson, Human Rights at the Dawn of the 21st Century, 15 HUM. RTS. Q. 629, 632 (1993). Human Rights Quarterly 22 (2000) 838-860 @ 2000 by The Johns Hopkins University Press This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State
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Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African StateBetween Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State
Bonny Ibhawoh*
We must go back to listening. More thought and effort must be given to enriching the human rights discourse by explicit reference to other non-Western religions and cultural traditions. By tracing the linkages between constitutional values on the one hand and the concepts, ideas, and institutions which are central to [various] traditions, the base of support for fundamental rights can be expanded and the claim to universality vindicated.
Mary Robinson, UN High Commissioner for Human Rights, Human Rights at the Dawn of the 21st Century'
I. INTRODUCTION
The polarized debate over the universality or cultural relativity of human rights seems to have given way in recent years to a broad consensus that there is indeed a set of core human rights to which all humanity aspires. The discourse has gradually moved away from whether contemporary human rights are truly universal and therefore cross-culturally applicable to whether they are, as cultural relativists argue, merely the product of Western
* Bonny lbhawoh is a lecturer in African history and international development studies at the Edo State University in Nigeria and currently an Izaak Walton Killam scholar at Dalhousie University in Canada. He was formerly a guest research fellow at the Danish Center for Human Rights, Copenhagen and an associate member of the Center for African Studies of the School of Oriental and African Studies at the University of London. He is also a research consultant with the Constitutional Rights Project-a human rights NGO based in Nigeria.
The author is grateful to the Danish Center for Human Rights, Copenhagen, under whose Research Partnership Program part of the research for this paper was undertaken. Thanks also to Mark Gibney, Katarina Tomasevski, Lone Lindholt, and Eva Maria Lassen for their comments on earlier versions of this article. 1. Mary Robinson, Human Rights at the Dawn of the 21st Century, 15 HUM. RTS. Q. 629,
632 (1993).
Human Rights Quarterly 22 (2000) 838-860 @ 2000 by The Johns Hopkins University Press
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 839
individualism.2 One reality that has strengthened the need for the universal- ization of human rights is the trend toward rapid globalization in almost every sphere of human endeavor. The spread of the Western model of the state to Africa and other parts of the developing world has given rise to the need for constitutional and other legal guarantees of human rights. Thus, the modern concept of human rights, admittedly a product of the West, is increasingly becoming equally relevant in other parts of the world.
The universalization of human rights, however, has not precluded attempts to temper the modern content of "universal" rights with the specific cultural experiences of various societies. In the case of Africa, this desire has led to calls for a regime of human rights founded on the basic universal human rights standards but also enriched by the African cultural experi- ence. The challenge, therefore, is how to achieve this balance of values: how to uphold national human rights standards while resolving the apparent conflict between them and the dominant cultural traditions of the constituent communities within the state.
This article examines this dilemma that confronts many African states and explores ways in which culture, through adaptation and modification, can serve to complement rather than constrain specific national human rights aspirations. It is not enough to identify the cultural barriers and limitations to modern domestic and international human rights standards. It is even more important to understand the social basis of these cultural traditions and how they may be adapted to or integrated with national legislation to promote human rights. This article argues that such adaptation and integration must be done in a way that does not compromise the cultural integrity of peoples. In this way, the legal and policy provisions of national human rights can derive their legitimacy not only from state authority but also from the force of cultural traditions.
2. A growing number of scholars who otherwise may be classified as cultural relativists also embrace the arguments for a core of cross-culturally applicable universal human rights principles. See, e.g., Alison D. Renteln, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 HUM. RTS. Q. 514-40 (1985); James W. Nickel, Cultural Diversity and Human Rights, in INTERNATIONAL HUMAN RIGHTS: CONTEMPORARY ISSUES 43 (Jack L. Nelson & Vera M. Green eds., 1980); Abdullahi Ahmed An-Na'im, Toward a Cross-Cultural Approach to Defining International Standards of Human Rights, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (Abdullahi Ahmed An-Na'im ed., 1992); Makau Wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
II. CULTURAL LEGITIMACY AND THE HUMAN RIGHTS DISCOURSE IN AFRICA
In his evaluation of the dominant trends in African human rights discourse, Akwasi Aidoo decries the fact that "[o]riginal research in the area of human rights in Africa is scanty."3 He notes the seeming preoccupation of African scholars with human rights discourse at the formal public sphere (where human rights violations occur as a result of dramatic political events and conflicts). This preoccupation results in the relative neglect of the sphere of civil society where cultural traditions and customs impact negatively on specific rights. Aidoo emphasizes the need for urgent research on such themes as the "cultural foundations of human rights" among others, which in his view have not been sufficiently addressed by African scholars.4
The point that Akwasi Aidoo makes is not peculiar to human rights discourse in Africa. Indeed, apart from the broad theoretical debate over universalism and cultural relativism, the global human rights discourse has focused less on specific empirical studies on the role of culture in the development of human rights than on other themes. One reason for this trend may lie in the simple fact that human rights discourse at the non- formal level of social and cultural relations remains shrouded in a great deal of conceptual ambiguities. For one, the concepts of "culture" and "cultural legitimacy" have been caught in a considerable amount of confusion within the context of human rights discourse, because of the diversity of their uses. Against the background of rivaling theories of culture, the point has been made repeatedly that research into the cultural legitimacy of human rights requires the articulation of very precise conceptions of culture and legiti- macy. While such attention to conceptual detail may be useful in putting the discourse in perspective, it also very easily becomes an unnecessary complication of what should otherwise be simple and straightforward discourse.
Tore Lindholm has suggested that when inquiring into the cultural legitimacy of human rights, we are best served by the "commonsensical approach." In his view, to inquire into the cultural legitimacy of human rights would be quite simply to "inquire into the kinds and degrees of support for human rights standards and for their implementation in "'culture(s)'-be it 'micro-cultures' of villages or tribes, or 'subcultures' of professions and social classes, or 'national cultures,' or 'regional cultures.'"'5
3. Akwasi Aidoo, Africa: Democracy Without Human Rights?, 15 HUM. RTS. Q. 703, 713 (1993).
4. Id. 5. TORE LINDHOLM, THE CROSS-CULTURAL LEGITIMACY OF HUMAN RIGHTS: PROSPECTS FOR RESEARCH 4
(1990).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 841
There are two distinct possibilities to such an inquiry. First, the inquiry may study a particular culture and ask what difference that culture makes to its carriers regarding the promotion of human rights. Second, the inquiry may focus on the doctrinal components or manifestations of cultures in order to elicit their roles and potential, whether as resources or barriers, in the fulfillment of human rights. This latter task is an inquiry into the factual support and normative validity of national and universal human rights standards in Africa. Reflecting the object of this paper, each standard's validity is examined within the context of the dominant cultural traditions inherent in each society.
A related point on the discourse on culture and human rights in Africa needs to be made. Some studies from the viewpoint of cultural relativism present the ideal of a relatively decentralized, nonbureaucratic, traditional communitarian societies based on groupings of extended families. In some of these studies, references to traditional African societies tend to present cultural notions, institutions, and practices as static and unchanging. References to "traditional African culture" or a "traditional Asian culture" often convey the idea of a monolithic and unchanging pre-modern state of affairs to be contrasted with modern Western traditions.6
This assumption tends to ignore the fact that societies are constantly in the process of change wrought by a variety of cultural, social, and economic forces. It seems an elementary but necessary point to make that so-called traditional societies-whether in Asia, Africa, or in Europe-were not culturally static but were eclectic, dynamic, and subject to significant alteration over time. Traditional cultural beliefs are also neither monolithic nor unchanging. In fact they could-and were-changed in response to different internal and external pressures. Cultural change can result from individuals being exposed to and adopting new ideas. Individuals are actors who can influence their own fate, even if their range of choice is circumscribed by the prevalent social structure or culture. In doing so, those who choose to adopt new ideas, though influenced by their own interest, initiate a process of change which may influence dominant cultural
6. See e.g., Okey Martin Ejidike, Human Rights in the Cultural Traditions and Social Practices of the Igbo of Souther-Eastern Nigeria, 43 J. AFR. L. 71 (1999); Kwasi Wiredu, An Akan Perspective on Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL
PERSPECTIVES 243 (Abdullahi Ahmed An-Na'im & Francis M. Deng eds., 1990); Francis M. Deng, A Cultural Approach to Human Rights Among the Dinka, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES, supra, at 261; El-Olaid Ahmed El-Obaid & Kwadwo Appiagyei- Atua, Human Rights in Africa: A New Perspective on Linking the Past to the Present, 41 McGILL L. J. 819 (1996). Although Okey Martin Ejidike acknowledges in his essay that cultures and societies are dynamic and ever changing, the discussion of Igbo traditions that follows hardly explores this perspective. Little effort is made to actually demonstrate the flexibility of African social structures and the conflicts and contestations that have characterized their development.
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
842 HUMAN RIGHTS QUARTERLY Vol. 22
traditions. Culture is thus inherently responsive to conflict between indi- viduals and social groups.7 It is a network of perspectives in which different groups hold different values and world views, and in which some groups have more power to present their versions as the true culture.
The significance of this is that we proceed from the assumption that certain cultural traditions inherently appearing in conflict with national and universal human rights standards may in fact have the potential of being influenced through a process of change and adaptation to meet new human rights standards. We also proceed from the assumption that because culture is not monolithic, perceptions of cultural validity and legitimacy may differ significantly among different groups within a given society.
III. THE QUEST FOR CONGRUENCE BETWEEN CULTURE AND NATIONAL HUMAN RIGHTS STANDARDS
The quest for congruence or a common meeting point between cultural traditions and modern national and international legal standards is a theme of growing interest. In his discourse on the quest for congruence between culture and the legal systems in recently liberated societies, C.G. Weeramantry draws attention to the fact that, upon the attainment of independence, newly emerged nations often need to take a considered decision whether, and to what extent, they would wish to preserve their traditional values and cultural systems. The opportunity to make that decision has been presented to more than one hundred nations released from the bondage of colonialism since the beginning of this century. All have been faced with the challenge of maintaining cultural values while forging new institutions of nationhood. Their decisions are often translated into legal terms, whether constitutional or otherwise. In any event, it becomes part of the ongoing national discussion on the questions of cultural values and nation building.
The extent to which new nations may compromise universal social and legal standards in the quest to uphold certain cultural traditions is inherent in this discussion. Some of the dominant arguments have been for more cultural consideration in the institutional choices of new nations. In his inaugural address at the Ninth World Congress on Contemporary Concep- tions of Law in 1979, Gray Dorsey observed that:
Peoples that have recently regained political independence have a special opportunity with respect to organizing and maintaining societies and legal systems. It would be a tragedy if they should choose a philosophy of society and
7. See RHODA HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA 19 (1986).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 843
law because of a claim of universal validity, or in order to avoid being called backward or underdeveloped.8
There is indeed a basis for the apprehension that Dorsey expresses. Many of the problems that postcolonial states face might have been partially avoided if due attention had been paid to this problem. With specific regard to human rights, however, there are some limitations to the arguments for absolute cultural relativism against universality. In recent years, the heavily polarized debate over the universality or cultural relativity of human rights has given way to a broad consensus that there are indeed a set of core universal human rights values to which humanity aspires. As Weeramantry puts it:
Today, internationalism is a potent reconciler. While countries would like to retain as large a part as possible of the traditional, the fact that we are one world community makes this difficult when those traditions are inconsistent with prevailing international concepts and attitudes.9
It is clear, however, that the legitimacy and acceptability of the modern universal human rights regime needs to be complemented and strengthened with the specific cultural experience of various societies. In the case of Africa, this has been interpreted to mean that the content of human rights, though founded on universal principles, has to bear what Makau Wa Mutua describes as the "African cultural fingerprint" that emphasizes group, duties, social cohesion and communal solidarity as opposed to rigid individualism.'1 This is a reflection of growing calls for non-Western societies to develop national human rights regimes founded on basic universal human rights standards but also enriched by African, Asian, or other cultural experiences. The larger question in the case of Africa is how this marriage of universal rights (as expressed in national constitutions) and culture can be achieved.
IV. THE CONSTITUTIONAL AND LEGAL BASIS OF HUMAN RIGHTS IN AFRICA
One goal of the national constitutions and applicable human rights laws in
many African countries has been the establishment of a regime of minimal universal human rights standards founded on the diverse cultural and religious orientations of the people. Questions remain, however, as to how best to strike the delicate balance between the individual human rights
8. Archiv fur Rechts-und Sozialphilosophie (ARSP) Supplement 3, 20, quoted in C.G. WEERAMANTRY, JUSTICE WITHOUT FRONTIERS: FURTHERING HUMAN RIGHTS 36 (1997).
9. C.G. WEERAMANTRY, supra note 8, at 45. 10. Mutua, supra note 2.
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
844 HUMAN RIGHTS QUARTERLY Vol. 22
standards guaranteed by the state and the collective cultural rights claimed by groups. Implicit in this is the tension and, sometimes, contradictions between the national human rights standards of state law and policies on one hand and the objective sociocultural orientations of peoples on the other. One instance of this is the tension and conflict between the constitutional guarantees of gender equality in national constitutions and the traditional status of women in many African cultures. Another is the conflict between the constitutional guarantees of children's rights and pervasive cultural attitudes which encourage early marriages, forced mar- riages, and child labour. Yet, a complementarity, if not an absolute congruence, of state laws and cultural norms is required if national human rights regimes are to gain grassroots acceptance.
There is an assumption that insofar as national human rights standards enshrined in national constitutions reflect the collective national con- science, they present a higher order of human aspirations with a more effective mechanism for promotion and enforcement. They also provide a higher set of standards by which the various cultural traditions can be judged. For this reason it is understandable that national human rights laws take precedence over customary or cultural practices, at least in theory. The principle of the supremacy of national constitutions ensures that in legal interpretation national human rights guarantees take precedence over any other laws or customary rules. This position is made clear in the South African Constitution, which provides expressly that "no law, whether as a rule of common law, customary law or legislation, shall limit any right entrenched in [the Constitution]."" Similar provisions of constitutional supremacy exist in other African constitutions.12
The reality, however, is not quite as simple. According to T.W. Bennett, sometimes the constitution gives no indication whether fundamental rights supercede customary law or vice versa. He notes, for instance, that the Constitutions of Zimbabwe, Swaziland, and Botswana provide that the application of African customary law is not subject to the prohibition on discrimination contained in the constitution.'3 Thus, ambiguities remain over how to uphold national human rights standards in practice against the
11. S. AFR. CONST. ch. 2, ? 36. 12. See, e.g., "Supremacy of the Constitution," NIG. CONST. ch. 1, pt. I; UGANDA CONST. ch. 1,
? 2. The latter states: "This constitution is the supreme law of Uganda ... [i]f any other law or custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void."
13. See ZIMB. CONST. ch. 3, art. 23, cl. 3(b).; ZAMBIA CONST. pt. 111, art. 23, cl. 4(d); SWAZ. CONST. ch. 2, art. 15, cl. 4(b); BOTS. CONST. See also T. W. BENNETT, HUMAN RIGHTS AND AFRICAN CUSTOMARY LAW UNDER THE SOUTH AFRICAN CONSTITUTION 28 (1995).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
background of the prevalence and dominance of customary practices which conflict with these standards.
National human rights provisions have not had full effect on African society because cultural practices persist that have great limitations on constitutional human rights guarantees. Constitutional and legal forms for recognizing and protecting human rights manifest shortcomings that result from the continuing conflicts with "traditional" cultural definitions and practices. One possible explanation for this may be that the development of national human rights regimes in Africa have not often been grounded on cultural traditions. Therefore, we must seek further explanations in the continent's history.
To understand the social and political dynamics of the human rights experience in Africa, it is necessary to…
Bonny Ibhawoh*
We must go back to listening. More thought and effort must be given to enriching the human rights discourse by explicit reference to other non-Western religions and cultural traditions. By tracing the linkages between constitutional values on the one hand and the concepts, ideas, and institutions which are central to [various] traditions, the base of support for fundamental rights can be expanded and the claim to universality vindicated.
Mary Robinson, UN High Commissioner for Human Rights, Human Rights at the Dawn of the 21st Century'
I. INTRODUCTION
The polarized debate over the universality or cultural relativity of human rights seems to have given way in recent years to a broad consensus that there is indeed a set of core human rights to which all humanity aspires. The discourse has gradually moved away from whether contemporary human rights are truly universal and therefore cross-culturally applicable to whether they are, as cultural relativists argue, merely the product of Western
* Bonny lbhawoh is a lecturer in African history and international development studies at the Edo State University in Nigeria and currently an Izaak Walton Killam scholar at Dalhousie University in Canada. He was formerly a guest research fellow at the Danish Center for Human Rights, Copenhagen and an associate member of the Center for African Studies of the School of Oriental and African Studies at the University of London. He is also a research consultant with the Constitutional Rights Project-a human rights NGO based in Nigeria.
The author is grateful to the Danish Center for Human Rights, Copenhagen, under whose Research Partnership Program part of the research for this paper was undertaken. Thanks also to Mark Gibney, Katarina Tomasevski, Lone Lindholt, and Eva Maria Lassen for their comments on earlier versions of this article. 1. Mary Robinson, Human Rights at the Dawn of the 21st Century, 15 HUM. RTS. Q. 629,
632 (1993).
Human Rights Quarterly 22 (2000) 838-860 @ 2000 by The Johns Hopkins University Press
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 839
individualism.2 One reality that has strengthened the need for the universal- ization of human rights is the trend toward rapid globalization in almost every sphere of human endeavor. The spread of the Western model of the state to Africa and other parts of the developing world has given rise to the need for constitutional and other legal guarantees of human rights. Thus, the modern concept of human rights, admittedly a product of the West, is increasingly becoming equally relevant in other parts of the world.
The universalization of human rights, however, has not precluded attempts to temper the modern content of "universal" rights with the specific cultural experiences of various societies. In the case of Africa, this desire has led to calls for a regime of human rights founded on the basic universal human rights standards but also enriched by the African cultural experi- ence. The challenge, therefore, is how to achieve this balance of values: how to uphold national human rights standards while resolving the apparent conflict between them and the dominant cultural traditions of the constituent communities within the state.
This article examines this dilemma that confronts many African states and explores ways in which culture, through adaptation and modification, can serve to complement rather than constrain specific national human rights aspirations. It is not enough to identify the cultural barriers and limitations to modern domestic and international human rights standards. It is even more important to understand the social basis of these cultural traditions and how they may be adapted to or integrated with national legislation to promote human rights. This article argues that such adaptation and integration must be done in a way that does not compromise the cultural integrity of peoples. In this way, the legal and policy provisions of national human rights can derive their legitimacy not only from state authority but also from the force of cultural traditions.
2. A growing number of scholars who otherwise may be classified as cultural relativists also embrace the arguments for a core of cross-culturally applicable universal human rights principles. See, e.g., Alison D. Renteln, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 HUM. RTS. Q. 514-40 (1985); James W. Nickel, Cultural Diversity and Human Rights, in INTERNATIONAL HUMAN RIGHTS: CONTEMPORARY ISSUES 43 (Jack L. Nelson & Vera M. Green eds., 1980); Abdullahi Ahmed An-Na'im, Toward a Cross-Cultural Approach to Defining International Standards of Human Rights, in HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (Abdullahi Ahmed An-Na'im ed., 1992); Makau Wa Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 VA. J. INT'L L. 339 (1995).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
II. CULTURAL LEGITIMACY AND THE HUMAN RIGHTS DISCOURSE IN AFRICA
In his evaluation of the dominant trends in African human rights discourse, Akwasi Aidoo decries the fact that "[o]riginal research in the area of human rights in Africa is scanty."3 He notes the seeming preoccupation of African scholars with human rights discourse at the formal public sphere (where human rights violations occur as a result of dramatic political events and conflicts). This preoccupation results in the relative neglect of the sphere of civil society where cultural traditions and customs impact negatively on specific rights. Aidoo emphasizes the need for urgent research on such themes as the "cultural foundations of human rights" among others, which in his view have not been sufficiently addressed by African scholars.4
The point that Akwasi Aidoo makes is not peculiar to human rights discourse in Africa. Indeed, apart from the broad theoretical debate over universalism and cultural relativism, the global human rights discourse has focused less on specific empirical studies on the role of culture in the development of human rights than on other themes. One reason for this trend may lie in the simple fact that human rights discourse at the non- formal level of social and cultural relations remains shrouded in a great deal of conceptual ambiguities. For one, the concepts of "culture" and "cultural legitimacy" have been caught in a considerable amount of confusion within the context of human rights discourse, because of the diversity of their uses. Against the background of rivaling theories of culture, the point has been made repeatedly that research into the cultural legitimacy of human rights requires the articulation of very precise conceptions of culture and legiti- macy. While such attention to conceptual detail may be useful in putting the discourse in perspective, it also very easily becomes an unnecessary complication of what should otherwise be simple and straightforward discourse.
Tore Lindholm has suggested that when inquiring into the cultural legitimacy of human rights, we are best served by the "commonsensical approach." In his view, to inquire into the cultural legitimacy of human rights would be quite simply to "inquire into the kinds and degrees of support for human rights standards and for their implementation in "'culture(s)'-be it 'micro-cultures' of villages or tribes, or 'subcultures' of professions and social classes, or 'national cultures,' or 'regional cultures.'"'5
3. Akwasi Aidoo, Africa: Democracy Without Human Rights?, 15 HUM. RTS. Q. 703, 713 (1993).
4. Id. 5. TORE LINDHOLM, THE CROSS-CULTURAL LEGITIMACY OF HUMAN RIGHTS: PROSPECTS FOR RESEARCH 4
(1990).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 841
There are two distinct possibilities to such an inquiry. First, the inquiry may study a particular culture and ask what difference that culture makes to its carriers regarding the promotion of human rights. Second, the inquiry may focus on the doctrinal components or manifestations of cultures in order to elicit their roles and potential, whether as resources or barriers, in the fulfillment of human rights. This latter task is an inquiry into the factual support and normative validity of national and universal human rights standards in Africa. Reflecting the object of this paper, each standard's validity is examined within the context of the dominant cultural traditions inherent in each society.
A related point on the discourse on culture and human rights in Africa needs to be made. Some studies from the viewpoint of cultural relativism present the ideal of a relatively decentralized, nonbureaucratic, traditional communitarian societies based on groupings of extended families. In some of these studies, references to traditional African societies tend to present cultural notions, institutions, and practices as static and unchanging. References to "traditional African culture" or a "traditional Asian culture" often convey the idea of a monolithic and unchanging pre-modern state of affairs to be contrasted with modern Western traditions.6
This assumption tends to ignore the fact that societies are constantly in the process of change wrought by a variety of cultural, social, and economic forces. It seems an elementary but necessary point to make that so-called traditional societies-whether in Asia, Africa, or in Europe-were not culturally static but were eclectic, dynamic, and subject to significant alteration over time. Traditional cultural beliefs are also neither monolithic nor unchanging. In fact they could-and were-changed in response to different internal and external pressures. Cultural change can result from individuals being exposed to and adopting new ideas. Individuals are actors who can influence their own fate, even if their range of choice is circumscribed by the prevalent social structure or culture. In doing so, those who choose to adopt new ideas, though influenced by their own interest, initiate a process of change which may influence dominant cultural
6. See e.g., Okey Martin Ejidike, Human Rights in the Cultural Traditions and Social Practices of the Igbo of Souther-Eastern Nigeria, 43 J. AFR. L. 71 (1999); Kwasi Wiredu, An Akan Perspective on Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL
PERSPECTIVES 243 (Abdullahi Ahmed An-Na'im & Francis M. Deng eds., 1990); Francis M. Deng, A Cultural Approach to Human Rights Among the Dinka, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES, supra, at 261; El-Olaid Ahmed El-Obaid & Kwadwo Appiagyei- Atua, Human Rights in Africa: A New Perspective on Linking the Past to the Present, 41 McGILL L. J. 819 (1996). Although Okey Martin Ejidike acknowledges in his essay that cultures and societies are dynamic and ever changing, the discussion of Igbo traditions that follows hardly explores this perspective. Little effort is made to actually demonstrate the flexibility of African social structures and the conflicts and contestations that have characterized their development.
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
842 HUMAN RIGHTS QUARTERLY Vol. 22
traditions. Culture is thus inherently responsive to conflict between indi- viduals and social groups.7 It is a network of perspectives in which different groups hold different values and world views, and in which some groups have more power to present their versions as the true culture.
The significance of this is that we proceed from the assumption that certain cultural traditions inherently appearing in conflict with national and universal human rights standards may in fact have the potential of being influenced through a process of change and adaptation to meet new human rights standards. We also proceed from the assumption that because culture is not monolithic, perceptions of cultural validity and legitimacy may differ significantly among different groups within a given society.
III. THE QUEST FOR CONGRUENCE BETWEEN CULTURE AND NATIONAL HUMAN RIGHTS STANDARDS
The quest for congruence or a common meeting point between cultural traditions and modern national and international legal standards is a theme of growing interest. In his discourse on the quest for congruence between culture and the legal systems in recently liberated societies, C.G. Weeramantry draws attention to the fact that, upon the attainment of independence, newly emerged nations often need to take a considered decision whether, and to what extent, they would wish to preserve their traditional values and cultural systems. The opportunity to make that decision has been presented to more than one hundred nations released from the bondage of colonialism since the beginning of this century. All have been faced with the challenge of maintaining cultural values while forging new institutions of nationhood. Their decisions are often translated into legal terms, whether constitutional or otherwise. In any event, it becomes part of the ongoing national discussion on the questions of cultural values and nation building.
The extent to which new nations may compromise universal social and legal standards in the quest to uphold certain cultural traditions is inherent in this discussion. Some of the dominant arguments have been for more cultural consideration in the institutional choices of new nations. In his inaugural address at the Ninth World Congress on Contemporary Concep- tions of Law in 1979, Gray Dorsey observed that:
Peoples that have recently regained political independence have a special opportunity with respect to organizing and maintaining societies and legal systems. It would be a tragedy if they should choose a philosophy of society and
7. See RHODA HOWARD, HUMAN RIGHTS IN COMMONWEALTH AFRICA 19 (1986).
This content downloaded from 130.113.111.210 on Thu, 5 Dec 2013 07:44:38 AM All use subject to JSTOR Terms and Conditions
2000 Human Rights in the African State 843
law because of a claim of universal validity, or in order to avoid being called backward or underdeveloped.8
There is indeed a basis for the apprehension that Dorsey expresses. Many of the problems that postcolonial states face might have been partially avoided if due attention had been paid to this problem. With specific regard to human rights, however, there are some limitations to the arguments for absolute cultural relativism against universality. In recent years, the heavily polarized debate over the universality or cultural relativity of human rights has given way to a broad consensus that there are indeed a set of core universal human rights values to which humanity aspires. As Weeramantry puts it:
Today, internationalism is a potent reconciler. While countries would like to retain as large a part as possible of the traditional, the fact that we are one world community makes this difficult when those traditions are inconsistent with prevailing international concepts and attitudes.9
It is clear, however, that the legitimacy and acceptability of the modern universal human rights regime needs to be complemented and strengthened with the specific cultural experience of various societies. In the case of Africa, this has been interpreted to mean that the content of human rights, though founded on universal principles, has to bear what Makau Wa Mutua describes as the "African cultural fingerprint" that emphasizes group, duties, social cohesion and communal solidarity as opposed to rigid individualism.'1 This is a reflection of growing calls for non-Western societies to develop national human rights regimes founded on basic universal human rights standards but also enriched by African, Asian, or other cultural experiences. The larger question in the case of Africa is how this marriage of universal rights (as expressed in national constitutions) and culture can be achieved.
IV. THE CONSTITUTIONAL AND LEGAL BASIS OF HUMAN RIGHTS IN AFRICA
One goal of the national constitutions and applicable human rights laws in
many African countries has been the establishment of a regime of minimal universal human rights standards founded on the diverse cultural and religious orientations of the people. Questions remain, however, as to how best to strike the delicate balance between the individual human rights
8. Archiv fur Rechts-und Sozialphilosophie (ARSP) Supplement 3, 20, quoted in C.G. WEERAMANTRY, JUSTICE WITHOUT FRONTIERS: FURTHERING HUMAN RIGHTS 36 (1997).
9. C.G. WEERAMANTRY, supra note 8, at 45. 10. Mutua, supra note 2.
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844 HUMAN RIGHTS QUARTERLY Vol. 22
standards guaranteed by the state and the collective cultural rights claimed by groups. Implicit in this is the tension and, sometimes, contradictions between the national human rights standards of state law and policies on one hand and the objective sociocultural orientations of peoples on the other. One instance of this is the tension and conflict between the constitutional guarantees of gender equality in national constitutions and the traditional status of women in many African cultures. Another is the conflict between the constitutional guarantees of children's rights and pervasive cultural attitudes which encourage early marriages, forced mar- riages, and child labour. Yet, a complementarity, if not an absolute congruence, of state laws and cultural norms is required if national human rights regimes are to gain grassroots acceptance.
There is an assumption that insofar as national human rights standards enshrined in national constitutions reflect the collective national con- science, they present a higher order of human aspirations with a more effective mechanism for promotion and enforcement. They also provide a higher set of standards by which the various cultural traditions can be judged. For this reason it is understandable that national human rights laws take precedence over customary or cultural practices, at least in theory. The principle of the supremacy of national constitutions ensures that in legal interpretation national human rights guarantees take precedence over any other laws or customary rules. This position is made clear in the South African Constitution, which provides expressly that "no law, whether as a rule of common law, customary law or legislation, shall limit any right entrenched in [the Constitution]."" Similar provisions of constitutional supremacy exist in other African constitutions.12
The reality, however, is not quite as simple. According to T.W. Bennett, sometimes the constitution gives no indication whether fundamental rights supercede customary law or vice versa. He notes, for instance, that the Constitutions of Zimbabwe, Swaziland, and Botswana provide that the application of African customary law is not subject to the prohibition on discrimination contained in the constitution.'3 Thus, ambiguities remain over how to uphold national human rights standards in practice against the
11. S. AFR. CONST. ch. 2, ? 36. 12. See, e.g., "Supremacy of the Constitution," NIG. CONST. ch. 1, pt. I; UGANDA CONST. ch. 1,
? 2. The latter states: "This constitution is the supreme law of Uganda ... [i]f any other law or custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void."
13. See ZIMB. CONST. ch. 3, art. 23, cl. 3(b).; ZAMBIA CONST. pt. 111, art. 23, cl. 4(d); SWAZ. CONST. ch. 2, art. 15, cl. 4(b); BOTS. CONST. See also T. W. BENNETT, HUMAN RIGHTS AND AFRICAN CUSTOMARY LAW UNDER THE SOUTH AFRICAN CONSTITUTION 28 (1995).
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background of the prevalence and dominance of customary practices which conflict with these standards.
National human rights provisions have not had full effect on African society because cultural practices persist that have great limitations on constitutional human rights guarantees. Constitutional and legal forms for recognizing and protecting human rights manifest shortcomings that result from the continuing conflicts with "traditional" cultural definitions and practices. One possible explanation for this may be that the development of national human rights regimes in Africa have not often been grounded on cultural traditions. Therefore, we must seek further explanations in the continent's history.
To understand the social and political dynamics of the human rights experience in Africa, it is necessary to…
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