Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
| Published date | 01 March 2001 |
| Date | 01 March 2001 |
| DOI | 10.1177/092405190101900104 |
| Author | Bonny Ibhawoh |
| Subject Matter | Article |
Cultural Relativism and Human Rights: Reconsidering the
Africanist Discourse
Bonny Ibhawoh •
Abstract
Discussions about culturalrelativism and the cross-cultural legitimacy
of
human rights have
been central to contemporary human rights discourse. Much
of
this discussion hasfocussed
on non-Western societies where scholars have advanced, from a variety
of
standpoints.
arguments
for
and against the cultural relativism
of
human rights. Arguments
for
'Asian
Values' and lately, 'African values' in the construction
of
human rights have defined this
debate. This paper reviews some
of
the major arguments and trends in the Africanist
discourse on the cultural relativism
of
human rights. It argues the need to go beyond the
polarities that have characterised the debate. It argues that while an Afrocentric conception
of
human rights is a valid worldview, it need not become the basis
for
the abrogation
of
the
emerging Universal human rights regime. Rather. it should provide the philosophical
foundationfor the legitimisation
of
Universal human rights in the African contextand inform
the cross-fertilisation
of
ideas between Africa and the rest
of
the world.
Introduction
The debate over whether, and to what extent, human rights are universal or culturally relative
Was
for the most part
ofthe
last two decades, the dominant theme in the global human rights
discourse. The core
of
the debate is whether
modem
human rights conceptions are
of
a
universal character and applicability or whether they are culturally relative - that is,
dependent on sociocultural 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 proceeds 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.IThe object here is to broadly review the discourse on the cultural relativism
of
43
Bonny lbhawoh is lecturer and researcher in African History and Development Studies at the Edo State
University, Nigeria and Izaak Walton Killam Scholar at Dalhousie University, Canada. Former Visiting
Research Fellow at the Danish Center forHuman Rights. Excerpts
of
this paper were first presented at the
Human Rights and the Rule
of
Law in Africa Symposium, University
of
Illinois, Urbana-Champaign, 8-10
July 1999.
Reference is made to some ofthe works on the theory
of
universalism and cultural relativism throughout this
paper. For a general view, see Jack Donnelly, 'Cultural Relativism and Universal Human Rights',
Human
RightsQuarterly, Vol. 6,
No.4,
1984, pp. 400-419; Alison Dundes Renteln,
'The
Unanswered Challenge
Netherlands Quarterly
of
Human
Rights.
Vol.
19/1.43-62,2001.
Netherlands Institute
of
Human
Rights
(SIM).
Printedin the
Netherlands.
..
NQHR
1/2001
human rights and the relevance
of
the Africanisf contribution to this discourse within the
context
of
the globalisation
of
human rights and the quest to enhance the cross-cultural
legitimacy
of
the emerging universal human rights regime. This essay is not intended to be
acomprehensive review
of
the existing literature. It seeks to outline some
of
the major
arguments and trends in the Africanist 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 African State.
I 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 without awell-defined concept
of
human rights, it is indeed difficult to proceed to analyse the concept. What precisely are
human rights? Is the meaning that 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.
Some writers have argued that although the broadly defined humanistic values that
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
ofthe
Enlightenment period, the French and American Revolutions and ultimately, the Universal
Declaration
of
Human Rights
of
1948. Therefore, any reference to the concept
of
human
rights before 1948 would be anachronistic.' Weston, for instance, believes that the term
'human rights' is actually quite new, having gradually emerged in everyday usage since the
end
of
the Second World War and the founding
of
the United Nations." Similarly, Bassam
Tibi notes that many scholars tend to confuse 'human rights' with '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 entitlements which
of
Relativism and the Consequences for Human Rights', Human Rights Quarterly, Vol. 7,
No.4,
1985, pp.
514-540; Lone Lindholt, Questioning the Universality
of
Human Rights: The African Charter on Human and
People'sRights in Botswana, Malawi and Mozambique, Aldershot, Brookfield, Dartmouth, 1997; F. Teson,
'International Human Rights and Cultural Relativism', Virginia Journal
of
International Law, Vol. 25, No.
4,1985,
pp. 869-898; P. Berger, 'Are Human Rights Universal?', Commentary, Vol. 64,1977, pp. 28·39;
John Klenig, 'Cultural Relativism and Human Rights', in: Alice Erh-Soon (ed.), Teaching Human Rights,
Australian Government Publishing Service, Canberra, 1981, pp. 111-118.
In some social science and African studies literature, the
term'
Africanist' is employed to refer to non-
Africans who write about Africa and it excludes Africans, whether in Africa or abroad, who write on Africa.
This is not the sense in which the term is employed in this essay as I find this distinction rather unnecessary.
Here, the term is employed in the broader sense in which the term is also often employed -referring to both
African and non-Africans writers who write on Africa.
See BassamTibi,
'The
European Conception
of
Human Rights and the Culture
ofIslam',
in: A.A. An-Nairn
and Francis Deng (eds.), Human Rights in Africa. Cross Cultural Perspectives, The Brookings Institution,
Washington DC, 1990, pp. 104-132; Rhoda Howard, Human Rights in Commonwealth Africa, Rowman &
Littlefield, Totowa, N. J, 1986, p. 19; Jack Donnelly, 'Human Rights and Human Dignity: An Analytic
Critique
of
Non-Western Human Rights Conceptions', American Political Science Review, Vol. 76, 1982,
p.303.
B. Weston,
'Human
Rights', Human Rights Quarterly, Vol. 6,
No.3,
1984, pp. 257-258.
44
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
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 African or Asian societies also had no inkling
of
human rights in the
modem
sense. The main argument here is that the idea
of
human rights,
as rooted in
modem
society is an entirely
new
concept, distinct from previous notions
of
human dignity."
Rhoda Howard, in response to arguments for an African concept
of
human rights, states
quite categorically that the African concept
of
human rights is actually aconcept
of
human
dignity;
of
what defines the inner moral nature and worth
of
the human person and his or her
properrelations 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 specificaIly 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 organisation and social change in African society."
Jack Donnelly gives the debate a whole
new
dimension when he distinguishes between the
concepts
of
distributivejustice and human rights. He argues that distributive justice involves
giVing a person that which he or she is entitled (his or her rights). Unless these rights are
those to which the individual is entitled simply as a human being, the rights in question will
not be human rights. In traditional African societies 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.
The
problem, it seems, is simply one
of
ontology -
oflabels
rather than the ideas
that underlie the labels. 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 conceptualise human rights within the narrow sense
of
modem
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 emphasise
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 distributivejustice and the modem idea
ofhuman
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 become manifest.
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
Bassam Tibi, IDe.cit. (note 3), pp. 104-132.
Asummary of Bassam Tibi's arguments is presented in the introduction in: An-Naim/Deng, op.cit, (note
3), p. 3.
See, for example, Rhoda Howard, 'Group versus Individual Dignity in the African Debate on Human Rights',
in An-NaimlDeng, op.cit. (note 3), pp. 159-183; and Howard, op.cit. (note 3), p. 19.
See for instance, the definition provided in Howard,
op.cit.
(note 3), p. 23.
DonneIly, loc.cit. (note 3), p. 303.
45
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1/2001
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 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 recognise
the need to place the idea and meaning
of
rights in a social and historical context. In most
traditional African societies for example, there were no clear cut distinctions between
religious values, moral precepts and laws. Therefore, the question
of
legal entitlements as
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 that 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 modem concept
of
legal rights. This approach to
conceptualising human rights can provide a basis for the cross-cultural understanding
of
the
contemporary meaning
of
human rights.
II Human Rights and Cultural Relativity
The philosophy
of
cultural relativism is neither new nor peculiar to the human rights
discourse. While several philosophers have argued the 'ethical relativity'
of
human nature,
social anthropologists for the most part
of
the last century were preoccupied with the
discourse on the cultural relativity
of
social values, precepts and
norms.l?
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 outside criticism.
The doctrine is founded on the notion
of
communal autonomy and self-determination 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.
II
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,
however, 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 bases not only differ but indeed oppose each other.
Whereas Western conceptions are based on the notion
of
the autonomous individual, many
non-Western conceptions do not know such individualism. 12 It has been frequently stated by
cultural relativists, that the classical Western liberal notions
of
human rights 13 emphasise the
10
II
12
13
46
Some earlier major works which dealt with the concept of cultural relativism from philosophical and
anthropological standpoints include Ruth Benedict, Patterns
of
Culture, Houghton Mifflin Company,
Boston, 1934; Edward Westermarck, Ethical Relativity, Greenwood Press, New York, 1960; and Merville
Herskovits, Cultural Relativism: Perspectives in Cultural Pluralism, Random House, New York, 1973.
See Donnelly, loc.cit. (note 1), pp. 400- 419.
Issa Shivji, The Concept
of
Human Rights in Africa, Codesria, London, 1989, p. 16.
The reference to 'Western notions or traditions' here and elsewhere in this work is merely for the purpose
of
clarity and to keep our discourse within a specific scope. We recognise that to talk
of
a'western tradition
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
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 avexing issue for
those approaching the study
of
human rights from a global comparative perspective. For
instance, Makau wa Muta makes the point that the ascendancy
of
the language
of
individual
rights has a specific historical context in the Western world. The rise
of
the modem State in
Europe and its monopoly of violence and instruments
of
coercion gave birth to a culture of
rights to counterbalance the invasive and abusive State. For this reason, the 'transplantation
of the narrow formulation
of
Western liberalism cannot adequately respond to the historical
reality and the political and social needs
of
Africa'.14
Beyond the simple universalist/cultural relativism debate, however, the theoretical
questions on the universality
of
human rights have been approached by different scholars
from a vast array
of
historical and legal perspectives. Lone Lindholt has categorised the
discourse on the universality or cultural relativity
of
human rights under various schools
according to geographical and cultural boundaries. 15 She contends that the tendency toward
the more radical theory
of
universalism can be found among the Americans. Rhoda Howard,
Whom she identifies as a representative
of
the American school, claims with particular
reference to the African 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'.16 James Nickel 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. I?
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 operations,
the subordination
of
women and minority groups, arbitrary killings, torture and trials by
ordeal. It is also feared that recognising 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 categorised the doctrine
of
cultural relativism into
strong cultural relativism and weakcultural relativism. Strong cultural relativism holds that
culture is the principal source
of
the validity
of
a moral code or rule. 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 recognises culture as an important source
of
exceptions in the
14
15
16
17
of
humanrights' is to indulge ina degree
of
ideological generalisation. Human rights traditions in the
'West'
vary not only from one geographical location and/or historical period to another, but also from one social
class/group to another. Our reference to 'Western traditions' may therefore actually mean no more than the
standpoints of the dominant classes in the West.
Makau Wa Mutua, 'The Banjul Charter and the African Cultural Fingerprint: An Evaluation
of
the Language
of
Rights and Duties', Virginia Journal
of
International Law, Vol. 35,
No.2,
1995, pp. 341-432
Lindholt, op.cit. (note 1), p. 26.
Howard, op.cit. (note 3), p. 12.
James Nickel, Making Sense
of
Human Rights: Philisophical Reflections on the Universal Declaration
of
Human Rights, University
of
Calfornia Press, Berkeley, 1987, p. 44 jJ.
47
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1/2001
interpretation
of
human rights. IS 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 omitting the aspect
of
universality. 19 In
the same vein, Tevoedjre declares that there are certain universally acceptable norms for the
protection
of
peoples' rights and that these universal norms form a fundamental core
of
human
rights."
On their part, Lars Adam Rehof and Tyge Trier argue that empirically, there
exists a core
of
universally applicable basic principles that 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 recognise that different human rights are
considered important and fundamental at different points in time and under different
circumstances.2I
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
subsequentCovenants. 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 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 (...) [such] that what is held to be
ahuman 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 singlepeople. ,22
This position has since been echoed by several scholars." Antonio Cassese, 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."
IS
19
20
21
22
23
24
48
These positions, though not necessarily his, are outlined in Jack Donnelly, loc.cit. (note I), pp. 400-419, at
p. 401. However, in his arguments for the doctrine
of
weak cultural relativism, Donnelly contends that
'radical relativism and radical universalism are misguided' and argues instead for a weak cultural relativist
approach to human rights. This is an approach that views human rights as prima facie universal, but
recognises culture as a limited source
of
expectations and principles on interpretation.
1bidem, pp. 401-402.
Albert Tevoedjre, Human Rights and Democracy in Africa, Annual Lecture Series, United Nations
University Press, Tokyo, 1986, pp. 8-11.
Lars Adam
Rehof
and Tyge Trier, Menneskeret, Jurist-og 0konomforbundts Forlag, Kebenhvn, 1990, p.
52.
Statement on Human Rights by the Executive Board, American Anthropological Association, American
Anthropologist, Vol. 49, 1947, pp. 539- 543 [emphasis added].
Raimundo Pannikkar argues that '[n]o culture, tradition, ideology, or religion can today speak for the whole
of
mankind, let alone solve its problems. Dialogues and discourse leading to a mutual fecundation are
necessary'.Raimundo Pannikkar, 'Is the Notion
of
Human Rights a Western Concept?',Diogenes, Vol. 120,
1982, p. 75
Antonio Cassese argues that because
of
the 'profounddivergences in the philosophical conception
of
human
rights', the search for universality is vain.
'Not
only are human rights observed differently - certainly to
different degrees - in different countries; but they are also conceived differently'. Antonio Cassese, Human
Rights in a Challenging World, Temple University Press, Philadelphia, 1990, pp. 50-51.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
What is evident from the trend
of
the discourse on the universality and cultural relativity
of
human rights is that it reflects the diversity
of
the views
of
scholars and writers. The
debate spans from arguments for an ideal,
if
not utopian notion
of
absolute universalism, to
arguments for a purely relativist view. Most writers have found it more useful to adopt a
middle course. On the one hand, it is recognised that universality exists to some extent, at
least in relation to some basic human rights concepts and principles, particularly those which
border on the sanctity
of
human life and dignity. On the other hand, it is also accepted that
some space must be left 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 appears to be 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 harmonised with that
of
the community. Yet, underlying these two
conceptions must be a 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.
III' 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 characterised human rights discourse in the West. The arguments for the
cultural relativity
of
'Asian values' and lately, 'African values' in the conception and
interpretation
of
human rights have been central to this trend." Although trends in recent
scholarship suggest the declining justifiability
of
cultural relativism, it is still necessary to
look at the major cultural variables that are said to account for differences among human
rights concerns when we seek to understand Africanist viewpoints." Indeed, the discourse
on the cultural relativity
of
human rights from the Africanist perspective has attracted
considerable attention although there remain differences
of
opinion on the articulation
of
the
Africanist position in relation to the contemporary human rights corpus.
Issa Shivji, in one
of
the earlier Africanist contributions, argued that one can hardly talk
of
an African philosophy
of
human rights, because there is very little written by African and
non-African Africanists on the conceptual and philosophical foundations
of
human rights in
Africa. What exists is simply an African ethno philosophy
of
human rights. In his view, the
philosophical discussions which may be
of
certain relevance to Africa are largely Western
2S
26
The Asian values debate has focused on arguments by some writers that Asia has its own distinctive
historical and cultural values which may differ from the 'universal' human rights norms promoted by the
West. For a more incisive expose on the Asian values and human rights debate, see Bilahari Kausikan,
'Asia's
DifferentStandard', Foreign Policy, No. 92, Fall 1993, pp. 24-41; William Theodore De Bary,Asian
Values
and
Human Rights: A Confucian Communitarian Perspective, Harvard University Press, Cambridge,
MA, 1998; Xiaorong Li, '''Asian Values" and the Universality
of
Human Rights', Philosophy
and
Public
Policy, Vol. 16,
No.2,
1996, pp, 18-22; Joanne R. Bauer, Daniel A. Bell (eds.), The East Asian Challenge
for
Human Rights, Cambridge University Press, Cambridge, New York, 1999.
Ronald Cohen, Goran Hyden and Winston P. Nagan (eds.), Human Rights and Governance in Africa,
University Press
of
Florida, Gainesville, 1993, p. 13.
49
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112001
viewpoints and their Marxist critiques." Josiah Cobbah expresses the same view when he
argues that despite the increase in the discussion
of
human rights in Africa, very little exists
in the form
of
literature that approaches the idea
of
human rights from an African
perspective. He insists that what most Africans have written on the subject tends to be
attempts to either show that the Western concept
of
human rights exists in African cultures,
or reflect Western-style condemnation
of
the abuse
of
human rights in Africa."
It is significant to point out, however, that the position regarding the literature has
changed dramatically since Shivji wrote in 1989 and Cobbah in 1986. Quite a number
of
works have recently been done by African and non-African Africanists on the philosophy
of
human rights in
Africa."
Besides, even the so-called discourse on an 'African ethno
philosophy
of
human rights' has over the years provided a fitting basis for the articulation
of
what can appropriately be described as an African philosophy
of
human rights. Several
scholars have advanced from a range
of
interdisciplinary perspectives arguments for a
distinctive Africanist perspective on the discourse on the cultural relativity
of
human rights.
The central themes in these arguments have dwelt on the philosophical foundations
of
the
African concept
of
human rights and how this concept contrasts with western notions and
institutions which were subsequently extended to the continent in the colonial era. To
understand the Africanist discourse on the cultural relativity
of
human rights in Africa,
however, it is necessary to draw attention once again to the argument by some writers that
the contemporary concept
of
human rights is a modem development which has its roots in
the Universal Declaration
of
Human Rights and was thus alien to traditional societies in
Africa or elsewhere. 30 Some
of
these writers have suggested that the concept
of
human rights
as legal entitlements which individuals hold in relation to the State simply did not exist in
traditional African societies. As indicated earlier, they argue that what is usually put forward
as human rights concepts in traditional Africa is nothing more than the notion
of
human
dignity
and
worth which exists in all pre-industrial societies.
It is argued that all human societies including those in Africa, have gone through a stage
when, because
of
the low level
of
productive forces, collective ownership
of
the means
of
production and the communal organisation
of
society were necessary for subsistence.l'This
communal social structure naturally allowed for the development
of
humanistic ideals, which
did not necessarily equate with modern conceptions
of
human rights. Any argument for a
traditional pre-colonial concept
of
human rights is therefore only a question
of
confusing
27
28
29
30
31
50
Idem.
Josiah Cobbah, 'African Values and the Human Rights Debate: An African Perspective', Human Rights
Quarterly, Vol. 9,
No.3,
1987, pp. 309-310.
See for instance, An-Na'imlDeng, lac.cit. (note I); Tunji Abayomi (ed.), Human Rights and Democracy in
Africa, Human Rights Africa, Lagos, 1993; and Makau Wa Mutua, op.cit. (note 14). Also see Mutua,
'Limitations on ReligiousRights: Problematizing Religious Freedom in theAfrican Context', Buffalo Human
Rights Law Review, Vol.
5,1999,
pp. 75-105.
The term 'traditional' has been widely abused in African Studies.
It
has been suggested that what often
appears traditional or portrayed as traditional are, in fact, practices and ideologies invented at specific
moments in the recent past. Besides, the term 'traditional Africa' can be problematic. If the term refers to
the pre-capitalist, communal stages
of
slave and feudal modes
of
production, the historical attributes which
we identify as being traditionally African may not be peculiar to Africa after all, since this stage
of
social
development has been common to many other societies. The conceptualisation
of
African traditions here
therefore, is in a dynamic sense. It refers not only to the social attributes
of
the pre-modem and pre-capitalist
stages
of
development, but also the more modem socioeconomic and political changes and continuities in
African cultures and social orientations.
Osita C. Eze, 'Is the Protection
of
Human Rights and Democracy strange to African Traditions?', in:
Abayorni, op.cit. (note 29), p. 82.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
'human
dignity' with
'human
rights'. Even at that, it has been further suggested that, to the
extent that modernisation or Westernisation has reached into, and transformed traditional
communities in Africa, traditional approaches to guaranteeing human dignity for all their
Worthwould
seem
objectively inappropriate for the
modem
African nation State. To continue
to base human rights policy on the communal model
of
traditional Africa would be to ignore
the changes that have occurred and are occurring in the
way
Africans live.
Another variant
of
this school is the argument that traditional Africa as, indeed, most pre-
modern agrarian societies did not evolve perceptions
of
humanrights, because these societies
did not recognise the concept
of
a
'human
being' as a descriptive category to which some
inalienable rights were attached. Instead, persons were defined by social status or group
membership. Thus, traditional societies generally did not recognise rights held simply
because one is a human
being."
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
suchtraditional societies.P Human rights were thus alien to traditional African
societies (as they were to feudal Europe), until Western modernising incursions dislocated
community and deniednewly isolated individuals access to the customaryways
of
protecting
their lives and human dignity." 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."
Incontrast to these positions, several African and Third World writers have argued that
the philosophy and conceptions
of
human rights are neither exclusive to Western liberal
traditions
norrelevant
onlywith reference to post-1948 developments.
They
reject the notion
that the concept
of
human rights, having been originated, developed and refined in the West,
Wasthereafter 'transplanted' to Africa and the rest
of
the world. This view has been variously
described as paternalistic, inherently ahistorical and philosophically bankrupt.36 S.K.B.
Asante for instance, rejects the notion that human rights concepts are peculiarly or even
essentially bourgeois or Western, and without relevance to African and other non-Western
traditions.37 Such anotion confuses the articulation
ofthe
theoretical foundations
of
Western
concepts
of
human rights, with the ultimate objective
of
any philosophy
of
human rights,
32
33
34
3S
36
37
Donnelly, lac.cit. (note 3), pp. 303-316.
This point and others that have been advanced by writers who oppose the argument for an African concept
of
human rights are summarised in Mutua, loc.cit. (note 14),
pp.337-339.
Howard and Donnelly have suggested that pre-industrial African societies did not generate the complex
process
of
human
rights. Donnelly specifically dismisses the notion that pre-colonial societies knew the
concept
of
human
rights, an argument he thinks
moot
because communitarian ideals had not
been
destroyed
and corrupted by the money economy and Western values. See Howard, lac. cit. (note7), pp. 159-183. Also
see Donnelly, loc.cit. (note I) pp, 410-412, and Jack Donnelly, Universal Human Rights in Theory
and
Practice, Cornell University Press, Ithaca, 1989, pp. 118-119.
Quoted in Shivji, op. cit. (note 12), p.
II.
See, for example, EI-OlaidAhmed El-Obaid and Kwadwo Appiagyei-Atua,
'Human
Rights in Africa: A New
Perspective on Linking the Past to the Present', McGill Law Journal, Vol. 41, 1996, p. 819; C.C. Mojekwu,
'International
Human
Rights: The AfricanPerspective' , in: J. L Nelson and V. M. Green(eds.), International
Human Rights: ContemporaryIssues. Human Rights Publishing Group, Stanfordville, N.Y, 1980, pp. 85-97;
A. Legesse,
'Human
Rights in African Political Culture' , in: K.W.
Thompson
(ed.), The Moral Imperatives
of
Human Rights: A World Survey, University Press
of
America, Washington DC, 1980, pp. 125-128.
S.K.B. Asante,
'Nation
Building and Human Rights in Emerging African
Nations',
Cornell International
Law Journal, Vol. 2, No. I, 1969,pp.
II-IS.
Asynopsis
of
As
ante's
argumentis presented in Hurst Hannum,
'The
ButareColloquium on Human Rights and Economic Developmentin Francophone Africa: A Summary
and Analysis', Universal Human Rights, Vol. I,
No.2,
1990, pp. 63-87.
51
NQHR
112001
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 as
applicable to western traditions as it is to African and other non-western traditions.
Mahmood Mamdani and Paulin Hountondji 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 aconception
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 Paulin
Hountondji puts it:
,[Western philosophers1produced 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 formulation, explanation
and analysis (...) in short, a draft
of
the philosophy
ofhurnan
rights.':"
The Africanist approach to the discourse on the cultural relativism
of
human rights can
therefore be broadly divided into two broad schools. The first
of
these is the less radical
approach which is ideologically closer to the dominant universalist schools
of
the West.
Proponents
ofthis
school, while arguing the validity
of
auniquely African concept
of
human
rights, also recognise the universality
of
abasic core
of
human rights. Kofi Quashigah for
instance, concludes that human rights concepts that 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'.
40
The second school is in more radical opposition to the universalist approach. It seeks to
fundamentally challenge the Western-oriented State-individual thinking that otherwise
dominates human rights. The main argument here is rooted in a belief in the distinctively
different philosophical basis and worldviews
of
Western European and African societies,
with a particular emphasis on the collectivist rather than individualistic nature
of
the concept
of
rights and duties in Africa. Yougindra Khasalani," Dunstan
Wai,42
Lakshaman
Marasinghe," Okey Martin Ejidike," Kwasi Wiredu" and Makau Wa Mutua" are some
of
38
39
40
41
42
43
44
45
46
52
Mahmood Mamdani, 'The Social Basis
of
Constitutionalism in Africa', The Journal
of
Modern African
Studies, Vol. 28,
No.3,
1990, p. 360.
Paulin J. Hountondji, 'The Master's Voice - Remarks on the Problem
of
Human Rights in Africa' ,reprinted
by the University
of
Benin, quoted in Mamdani, loc.cit. (note 38), p. 360.
Kofi Quashigah,
'The
Philosophical Basis ofHurnan Rights and its Relation to Africa', Journal
of
Human
Rights Law
and
Practice, Lagos, Vol. I, Nos. 3: 2, I and 2, 1991, pp. 7-20.
See Yougindra Khushalani, 'Human Rights in Asia and Africa', Human Rights Law Journal, Vol. 4,
No.4,
1983, pp. 404-442.
Dunstan M. Wai,
'Human
Rights in Sub-Saharan Africa' in: A. Pollis and P. Schwab (eds.), Human Rights:
Cultural and Ideological Perspectives, Praeger, New York, 1979, pp.l15-144.
1. Marasinghe, 'Traditional Conceptions
of
Human Rights in Africa', in: C.E. Welch, Jr. and R.I. Meltzer
(eds.), Human Rights
and
Development in Africa, State University
of
New York Press, Albany, 1984, pp.
32-45.
Okey Martin Ejidike,
'Human
Rights in the Cultural Traditions and Social Practices
of
the Igbo
of
South-
Eastern Nigeria', Journal
of
African Law, Vol. 43,
No.1
1999, pp, 71-98.
Kwasi Wiredu, An Akan Perspective on Human Rights, in: An-Na'im/ Deng, op.cit. (note 3), pp. 243-260.
Mutua, lac.cit. (note 14), pp. 339-380.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
the writers in this category." Most
of
these writers subscribe to the argument articulated by
Prakash Sinha that non-Western notions
of
human rights differ fundamentally from dominant
Western conceptions. In his discourse on the 'Non-Western viewpoint
of
human rights',
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. Firstly, the
fundamental unit
of
the society is conceived as the individual, not the family. Secondly, the
primary basis for securing human existence in society is through rights, not duties. Thirdly,
the primary method
of
securing rights is through legalism where rights are claimed and
adjudicated upon, not through reconciliation, repentance or education."
Against this background, Keba M'Baye points out that traditional or pre-colonial Africa
knew
of
human rights adapted to the political and social situations existing in that epoch.
These rights as recognised and protected must be looked at within the context
of
societies that
were atomised and rendered hierarchical by a caste system, and at the same time unified by
mythological beliefs. Within these societies, the object
oflaw
was to maintain society in the
State in which it was handeddown by the ancestors. The concept
of
human rights within such
social context was thus necessarily communal and humanist, fostering mutual respect and
recognition
of
the rights and liberties
of
each individual within the wider context
of
the
community.49 To demonstrate this, Okey Martin Ejidike points out that traditional Igbo
society recognised certain rights and accepted philosophical principles similar to, but
necessarily different from, those underlying the present international human rights."
Makau Wa Mutua's position is a similar one. He argues that an examination
ofthe
norms
governing the legal, political and social structures in pre-colonial African societies
demonstrates that the concept
of
rights informed the notion
of
justice which, though
Community centered, also supported a measure
of
individualism.SI He argues further that in
traditional Africa, 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. The society developed certain
central social features which 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 emphasised 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
ofhuman
rights did
not stand in isolation. It went with duties. For every right to which a member
of
society was
47
48
49
50
51
For a discourse on the main ideas
of
some of these Africanist writers, see Shivji, op.cit. (note 12).
S. Prakash Sinha, 'Human Rights: A Non-Western View Point', Archiv
fur
Rechts-und Sozialphilosophie,
Vol. 67, 1981, p. 77.
Keba M'Baye, 'Organization de L'Unite Africaine', in: Les Dimensions Internationales des Droits de
l'Homme', UNESCO, Paris, 1987, p, 651.
Ejidike, loc.cit. (note 44), pp. 71-73.
Mutua points out that the contemporaryhuman rights corpus shares with pre-colonial Africa, the importance
of
personal security rights. The right to life, for example, was so valued in Akan and Akamba societies that
the power over life and death was reserved for a few elders and was exercised only after an elaborate judicial
procedure with appeals from one court to another and often only in cases
of
murder and manslaughter. See
Mutua, loc.cit. (note 14), passim. Also see Makau Wa Mutua, 'Limitations on Religious Rights:
Problematizing Religious Freedomin the African Context'.BuffaloHuman Rights Law Review, Vol. 5, 1999,
pp.75-105.
53
NQHR
1/2001
entitled, there was a corresponding communal duty. Expressed differently,
'the
right
of
one
kinship member was the duty
ofthe
other and the duty
ofthe
other kinship member was the
right
of
another'.52 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 African conception
of
human rights.53
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 to the Western
conception
of
rights which conceives rights in terms
of
abstract individualism without
corresponding
duties,"
the dominant African conception
of
humanrights combines a system
of
rights and obligations which gives the community cohesion and viability. As Mutua
observes, 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 pre-colonial African societies and can provide
a fitting basis for the construction
of
national human rights regimes in contemporary African
States.55
These arguments for a peculiarly communal African concept
of
human rights, however,
are confronted with their own theoretical and empirical limitations particularly in their
relevance to contemporary African societies. Rather than the persistence
of
traditional
cultural values in the face
of
modem incursions, the reality in contemporary Africa, as in the
rest
of
the developing world, is a situation
of
disruptive and incomplete Westernisation,
'cultural confusion', or even the enthusiastic embrace
of
'modem'
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 African context, far too
often no longer exist. In fact, E.A. El-Obaid and K. Appiagyei-Atua argue that the much
vaunted communal concept
of
human rights never existed in traditional African communities
in the ways that it has been presented. They posit that the African notion
of
human rights
does not over-emphasise the community, as
'most
African leaders and writers would have
us believe'. Rather, traditional African rights models primarily emphasised individual rights
and there was always abalance between individual and the community rights." Timothy
Fernyhough also expresses serious doubt whether the 'myth
of
Merrie Africa' is as valid as
theorists and ideologues suggest. He acknowledges that group-centered life is heavily
accented in African traditions. He adds however, that the individual person and his or her
dignity and autonomy are carefully protected in African traditions, as are individual rights
52
53
54
55
56
54
Cobbah, loc.cit. (note 28), p. 32 I.
This position
of
the Africanistphilosophy on the communitarian nature
of
the traditional African society has
been made the cornerstone
of
the African Charter on Human and Peoples' Rights which stipulates certain
rights as being the rights
of
the people as a community. Some writers contend that this emphasis on group
rights in the African Charter derogates from the more familiar notion
of
individual rights. See Howard,
op.cit. (note 3), p. 16.
The argument here is that Western liberal thought firmly holds that rights attach to the individualrather than
the organised society. The individual constitutes both the primary unit
of
organised society and the primary
holders
of
rights. The autonomous individual exists, independent of organised society and comes into it with
his rights.
Mutua, loc.cit. (note 14), p. 363.
El-Obaid and Appiagyei-Atua, lac.cit. (note 36), p. 819.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
to land, individual competition for public office, and personal success." Similarly Cohen
argues that the image
of
the capitalist West as the bastion
of
unrestricted individualism with
no concern for group rights and social justice is a 'distorted caricature'."
Although scholars have been at the forefront
of
exploring the cultural relativism
of
human
rights in the African context, the assertion
of'
African values' gains prominence when it is
articulated in the political rhetoric
of
African leaders and elite. 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. 59 Some writers have
even suggested that the picture
of
an idyllic traditional communitarian society has been
presented by African rulers and elite
'from
Kaunda to Nyerere' only to hide and rationalise
their own unbridled violations
of
human rights. In the scathing words
of
Rhoda Howard:
'Some
African intellectuals persist in presenting the communal model
of
social organization in Africa as
if it were fact, and in maintaining that the group oriented, consensual, and re-distributive value system is
the only value systemand hence it ought to be the basis
ofa
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.
,60
In a similar vein, Jack Donnelly has pointed out that arguments for the cultural relativism
of
human rights within the African context, are far too often made by urban economic and
political elites that 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. This traditional protection has largely been undermined
by rulers in the continent such that the human rights violations
of
most African regimes are
as antithetical to the cultural traditions which they idealise as they are to the 'Western'
human rights conceptions which they despise. Donnelly therefore cautions that
'(...) we mustbe alertto a cynicalmanipulation
ofa
dying,lost or even mythicalcultural past. Wemust not be misled
by complaintsof the inappropriateness of "western" humanrights made by repressiveregimes whose practiceshave
at best only the most tenuousconnection to the indigenousculture; communitarian rhetoric too often cloaks the
depredationsof a corrupt and often westernised or deracinated elite. In particular,we must be wary of self-interested
denunciations of the excessiveindividualism of "western" humanrights.,61
Howard and Donnelly were clearly, and perhaps quite justifiably suspicious
of
the political
elite
of
African countries who use the constant references to communal society and the
57
S8
59
60
61
Timothy Femyhough, 'Human Rights and Pre-Colonial Africa', in: Goran
Hyden
and Winston P. Nagan
(cds.), Human Rights and Governance in Africa, University Press
of
Florida, Gainsville, 1993, pp. 39-73.
Roland Cohen, 'Endless Teardrops: Prolegomena to the Study
of
Human rights in Africa', in ibidem, p. 14.
This point has also been repeatedly made with reference to the argument
for'
Asian values' in the discourse
on the cultural relativism of human rights. See Xiaorong Li, loc.cit., (note 25), pp. 18-22.
Howard, op.cit. (note 3), p. 25. Also see Rhoda Howard, 'Is There an African Concept
of
Human Rights?',
in: R.J. Vincent(ed.), Foreign Po/icyandHuman Rights: Issues and Responses, Cambridge University Press,
Cambridge, 1986, pp. 11-32; and Rhoda Howard, 'Evaluating
Human
Rights in Africa: Some Issues and
Implicit Comparisons', Human Rights Quarterly, Vol. 6,
No.2,
and May 1984, pp. 160-179.
Donnelly, loc.cit. (note I), p. 411. Donnelly cites several examples
of
African rulers who have employed
appeals to traditional practices as a justification for arbitrary rule. In Malawi, President Hastings Banda
utilised 'traditionalcourts' in order to deal with political opponents outside the regularlegal system. In Zaire,
President Mobutu created the practice of salon go, a form
of
communal labor with supposedly traditional
basis. In fact, it had little or nothing in common with indigenous traditional practices, rather it was more or
less a revival
of
the colonial practice of corvee labor.
55
NQHR
1/2001
primacy
of
socioeconomic well-being over civil and political rights, to mask systematic
violations
of
human rights in the interest
of
the ruling elite.
Indeed, the main interests served by the appeal to 'traditional communal African values'
in the human rights discourse are predominantly masculine and patriarchal, with a notable
concern over the control
of
women. Okey Martin Ejidike notes for instance, that a discussion
of
the rights and roles
of
women in traditional Igbo society in Nigeria involves the
'conspiracy
of
law and customary usage to underpin and continue palpable discriminatory
mores' against
women."
Another recent study on the cultural legitimacy
of
human rights in
Africa demonstrates how the debate has been dominated by urban-based male elites whose
perception
of
'cultural legitimacy' focuses on the idealised and invented traditions"
of
collectivism, definitive gender roles, and conservative male dominance and interpretation
of
moral values." These patriarchal notions
of
cultural legitimacy contrast significantly with
those
of
rural and urban women's groups and non-governmental organisations working for
women and minority rights. These latter groups argue for the implicit individualism
of
human rights and reject a notion
of
cultural legitimacy that promotes culture-based gender
inequalities. In their conception
of
cultural legitimacy, they focus on themes such as
traditional methods
of
conflict resolution, the centrality
of
the family, and the reciprocal
relationship between rights and duties rather than patriarchal hegemony. Thus, while they
subscribe to the view that universal rights be given some form
of
cultural interpretation, they
use the global human rights debate in criticising present cultural practices which infringe on
human rights. .
IV Challenging the Extremities
From the foregoing, we can identify three levels
of
arguments in the Africanist 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 African
historical experience. On this, it is difficult to escape the conclusion that the extreme
Africanist argument for a distinctively communitarian African concept
of
human rights
which stands in contrast with the concepts and traditions
of
the West or the rest
ofthe
world,
has its limitations.
If
anything, the notion
of
the absolute cultural relativism
of
human rights
62
63
64
56
Ejidike,
loc.ctt.
(note 44), p. 91.
See Bonny Ibhawoh, 'Between Culture and Constitution: Evaluating the Cultural Legitimacy
of
Human
Rights in the African State', Human Rights Quarterly, Vol. 22,
No.3,
2000, pp. 838-860. Several writers
have drawn attention to the historical process
of
the 'invention'
of
customs and traditions by dominant
groups in African societies through colonial social and legal restructuring. In his seminal work on the
invention
of
tradition in colonial Africa, for instance, Terence Ranger argues that, 'once the traditions
relating to community identity and land rights were written down in the court records [by the colonial
authorities] and exposed to the criteria
of
the invented customary model, a new and unchanging body
of
tradition was created'. These traditions were thus invented because, by documenting them as written laws,
they were denied
of
the flexibility and fluidity that characterised their operations in traditional societies. See
Terence Ranger, 'The Invention
of
Tradition in Colonial Africa', in: Terence Ranger and E. Hobsbawn
(eds.), The Invention
of
Tradition, Cambridge University Press, Cambridge, 1983, p. 251. Other significant
works which address the construction
of
tradition and customs in Africa are Martin Chanock, Law, Custom
and Social Order: The Colonial Experience in Malawi and Zambia, Cambridge University Press, Cambridge,
1985. For a forceful repudiation
of
this thesis, see Caroline Hamilton, Terrific Majesty: ThePowers of'Shaka
Zulu and the Limits 0/ Historical Invention, Harvard University Press, Cambridge Mass., 1998; and Sally
Falk More, Social Facts and Fabrications 'Customary' Law on Kilimanjaro, 1880-1990, Cambridge
University Press, Cambridge 1996.
Ibhawoh, loc.cit. (note 63), pp. 838-860.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
comes through as a misunderstanding inspired by cultural nationalism. Those aspects which
its proponents see as radically distinctive communitarian African traditions and conceptions,
also clearly possess ideals which are universal. Many
of
the humanistic and communiterian
values which have been exclusively ascribed to African societies, also generally apply to
most pre-industrial societies in Europe or
Asia."
On the other hand, it is difficult to accept the equally extremist critique
of
some Western
liberal writers
of
Africanist 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
Africa, the post-colonial State), or that the concept
of
human rights was alien to specific pre-
capitalist traditions in pre-colonial Africa. This monolithic interpretation
of
human rights is
problematic. While there may be a core
of
universal values which reflect inherent human
worth in various societies, the broad expression
of
these values 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 most Africans may answer that it is the extended
family."
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
or need for the rather sweeping assertion that traditional Africa or indeed any 'pre-modern'
society for that matter, has made no normative contribution to the contemporary human
rights corpus. As M. Haile 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 prerequisites to conception about or commitment to human rights elsewhere in the
world."?
V
The'
African Cultural Fingerprint'
The second level
ofthe
Africanist discourse on the cultural relativism
of
human rights relates
to the questions that have been raised over the validity and applicability to the African
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
African States and societies?
Several liberal scholars contend that since all African countries have been, or are
modernising 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 African
societies whatever their historical antecedents or cultural circumstances may be. Some
6S
66
61
It is significant to note that most of the attributes that are now frequently ascribed to the West, as 'Westem
values' are in fact, relatively recent developments in the West. Democracy and universal adult suffrage and
the full range
of
individual-centered political and civil rights, were not instituted in many parts
of
Europe
until the middle
of
the last century. Only a century back, many
of
the communal attributes now described
as Asian or African values, could also easily have applied to societies in Europe and North America.
Cobbah, loc.cit. (note 28), p. 319.
M. Haile, •Human Rights, Stability and Development in Africa: Some Observations on Concept and Reality',
Virginia Journal
of
International Law, Vol. 204,
No.3,
1984, p. 575.
57
NQHR112001
Africanists and proponents
of
cultural relativism have tended to agree with this. Edward
Kannyo 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 gave 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."
However, some Africanists 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 African
cultural experiences. Essentially, this means that the content
of
human rights has to bear what
Makau Wa Mutua has described as the 'African cultural fingerprint' which emphasises 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 African
States at the dawn
of
independence was that they borrowed little or nothing from existing
traditional norms and values. For this reason, some ofthese colonial-engineered concepts and
institutions have continued to bear little or no relevance to the distinctive needs
of
the post-
colonial African State. Claude Welch has argued that a number
of
political constraints on the
exercise
of
human rights that are currently manifest in African States can be attributed
directly to the process
of
colonial restructuring. He identifies three main features
of
colonial
rule, which tended to hinder human rights. First, the basic shape
of
the States themselves was
the consequence
of
European administrative convenienceor imperial competition. Secondly,
an authoritarian framework for local administration was installed, reducing most indigenous
rulers to relatively minor cogs in the administrative wheel, and leaving until the terminal days
of
colonialismthe creation
ofa
veneer
of
democratisation. Thirdly, European law codes were
introduced and widely applied, notably in the urban areas, while traditional legal precepts
were incompletely codified and relegated to an inferior position in civil law, particularly in
the rural areas." The task
of
redressing this situation calls for a regime
of
human rights
founded on the basic universal human rights standards but enriched by the African cultural
experience.
Pertinent as this observation is, it needs to be emphasisedthat 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 modem human rights orientations. For example, while
slavery and trials by ordeal have been customary in many societies in Africa as in other parts
of
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 widelypracticed, but are indefensible today. Yet, cultural relativism
is a fact
of
human rights discourse and the peculiarities in cultural and ethical orientations
invariably influence peoples' conceptions
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
oflocal
self-determination
68
69
70
58
Edward Kannyo, HumanRightsin Africa:Problems and Prospects, AReportPrepared for the International
League for Human Rights May 1980, p. 4. Jack Donnelly makes this same point when he argues: 'To the
extent that modernization or Westernization has reached into and transformed, traditional communities,
traditional approaches to guaranteeing human dignity seem objectively inappropriate; traditional limits to
power are unlikely to function effectively in modern conditions'. See Donnelly,loc.cit. (note I), p. 406.
See Mutua, lac.cit. (note 14), pp. 339-380.
See Claude Welch and Ronald Meltzer (eds.), HumanRights and Developmentin Africa, State University
of
New York Press, Albany, 1984.
Ibhawoh /Cultural Relativism
and
Human Rights: Reconsidering the Africanist Discourse
rather than as an excuse for arbitrary rule and despotism. Cultural derogation from universal
human rights standards" must be founded on an 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."
VI Reconsidering the 'Full Belly Thesis'
The third level
of
the argument in the Africanist discourse on the cultural relativism
of
human rights stems from the tendency
of
some Africanists and African elite to stress the
priority
of
social and economic rights over political and civil rights. The point
of
emphasis
here is the Africanist angle to this debate, which seeks to justify the curtailment
of
civil and
political rights in the interest
of
the collective social and economic development within the
context
ofthe
postcolonial State. Julius Nyerere, the former president
of
Tanzania, puts this
position across quite graphically when he asks:
'What
freedom has our subsistence farmer? Hescratches a bare existence from the soilprovided 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 isreduced, will his existing political freedom become properly
meaningful and his right to human dignity becomes a fact
of
human dignity. ,73
Another African leader, Colonel Acheampong
of
Ghana, expressed asimilar view when he
opined:
'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 Africa, economic and social rights must take precedence
over civil and political rights or the State-individual thinking that otherwise dominates
Western notions
of
human rights. This argument is often advanced as part
ofthe
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 political and civil rights should wait until basic needs are
secured. This is because civil and political rights are needed in order to implement reasonable
development policies, secure equitable distribution
of
wealth as well as promote economic
growth. Civil and political rights are also needed in order to guarantee social and cultural
rights and the maintenance
of
a stable social order necessary for society itself to exist.
Rhoda Howard has referred to the arguments for the primacy
of
economic rights by some
Africanists as the 'full belly thesis'. The full belly thesis is that a
man's
belly must be full
before he can indulge in the 'luxury'
of
worrying about his political freedoms."
71
73
74
7S
By the term 'universal human rights standards' reference is made here to the human rights obligations of
States enshrined in the Universal Declaration
of
Human Rights and the related international human rights
covenants.
The question
of
how the dominant cultural orientations within the African State may be regulatedby national
constitutional human rights provisions in the State without jeopardising existing cultural diversity and
integrity is the subject
of
recent study. See Ibhawoh, loc.cit. (note 63), pp. 838-860.
Julius Nyerere, 'Stability and Change in Africa', Africa Contemporary Record, Vol. 2, 1969-1970, pp. 31.
32. Quoted in Shivji, loc.cit. (note 12), p. 26.
See Rhoda Howard 'The Full Belly Thesis: Should Economic Rights take Priority over Civil and Political
Rights? Evidence from sub Saharan Africa', Human Rights Quarterly, Vol. 5,
No.4,
1983, p. 467.
Ibidem, p. 469.
59
NQHR 112001
The 'full belly 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
afull
belly
as it is an empty belly. Aperson's belly need not be full for him or her to be concerned about
his or her 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 African 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 African 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
Africa'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
African States. The point being made is that the economic
versus political rights debate in relation to Africa may not be quite as simplistic as Rhoda
Howard and other writers portray it with reference to
the'
full belly thesis'. The post-colonial
African State manifests certain developmental limitations and other peculiar characteristics
that must be taken into account in any study that seeks broad interpretations
ofthe
conditions
and prospects for human rights in the continent. For one, it is useful to recognise that unlike
in the West, the African State commands overwhelming power and influence which stands
in rather marked contradistinction 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 uplift.
At some point in the discourse, the arguments for and against the Africanist positions on
the cultural relativism
of
human rights become something
of
avicious 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 comes first? Or individual rights and communal
rights: which should take precedence over the other? It is perhaps in the 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 realise that like individual
and communal rights, both political rights and economic rights are interactive, interrelated
and interdependent, not sequential.77
76
77
60
A number
of
writers has drawn attention to the limitations that the peculiar economic and social conditions
in Africa place on democratisation and the electoral process. Brendalyn P. Ambrose in her work on
democracy and human rights in Africa, hasargued for instance that western style liberal democracy is not
suitable to Africa's economic and social heritage. She posits that protecting human rights requires
empowering people and reducing want and ignorance at the grassroots rather than tinkering with the
parliaments and courts. See Brendalyn P. Ambrose, Democratization and the Protection
of
Human Rights
in Africa: Problems and Prospects, Praeger, Westport, Conn., 1995; Andrew Reynolds, Electoral Systems and
Democratization in Southern Africa, Oxford Studies in Democratization, London, 1999.
Howard, lac.cit. (note 71), p. 470.
Ibhawoh /Cultural Relativism and Human Rights: Reconsidering the Africanist Discourse
Conclusion
An Afrocentric 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 de-legitimising the emerging universal human
rights regime, it should inform the cross-fertilisation
of
ideas between Africa and the rest
of
the world. It can also provide the moral and philosophical basis for the legitirnisation
of
universal human rights in the African context. The present challenge for Africanist human
rights scholars generally is to articulate for the international human rights community, an
African sense
of
human rights or dignity, which flows from the African perspective and 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 African sense
of
community obligation that goes beyond charity has much to offer in the international
discourse on human rights and particularly, in the promotion
of
social and economic rights.
Cultural relativism is a fact
of
human rights discourse and the peculiarities in cultural and
ethical orientations invariably influence peoples' 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 oflocal
self-determination rather than as an excuse for oppression, arbitrary rule and despotism.
In reality, the construction and definition
of
human rights norms is a continuous and
dynamic process. 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 the tolerance
of
differences. The
great task that confronts the international human rights movement is how to explore and build
upon the age-long 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
draWingfrom these varied cultural traditions, the emerging international human rights regime
may be expanded and its claim to universality vindicated in an increasingly pluralistic world
order.
In the 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 rationalise 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 realise that the object
of
human rights discourse
should be the quest for a reasonable and balanced approach to human rights that recognises
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 incorporating
diverse concepts, and moral experiences.
It
will be easier to find some harmony around the
globe under aparticular human rights rubric once the existence
of
human pluralism has been
61
NQHR
112001
recognised, understood and accepted. The hope is that greater cross-cultural understanding
will shed light on a common core
of
universally acceptable
rights."
Inclosing, I find Raimundo Panikkar's metaphor
of
the window particularly appropriate
in illustrating the main points articulated in this paper:
'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
culturewhich 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 aperture - with 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
windowsz'"
The latter choice, it seems to me, would much better serve the cause
of
the global human
rights movement.
78
79
62
Alison Dundes Renteln, 'The Unanswered Challenge
of
Relativism and the Consequences for Human
Rights', Human Rights Quarterly, Vol. 7,
No.4,
1985, p. 540.
Raimundo Panakker, 'Is the Notion of Human Rights a Western Concept?', Diogenes, Vol. 120, 1982, pp.
75-102.
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