Different historical contexts have generated different pre-occupations: different pre-occupations have generated different emphasis.
                - S.E. Finer, Five Constitutions, (Sussex: Harvest Press, 1979), p. 22.

1. Introduction

That a drunk mans words are often the disturbing thoughts of a sober man is a metaphor that subtly, but rightly casts doubt on the mode of understanding human rights in Africa. The African continent is now pregnant with a sense of hope from its peoples and sympathisers; some publicists and African scholars are propagating an African Renaissance for the new millennium. Yet, there is still a looming pessimism from some cynics, or is it pragmatists and rightists? Several studies have been undertaking on the disappointing record of human rights in Africa. While it is not the purpose of this paper to regurgitate the findings of such studies, or to celebrate a sense of euphoria in the way Africanity - from an African traditional society point of view - dealt with and maintained social order, this paper attempts to place in context and deconstruct the ideologically biased mode of perceiving the concept of human rights in Africa. It is argued that this bias is often perpetuated by a liberal and bourgeois school of thought in the field of human rights.

2. Preliminary insights into the discourse

To counter bourgeois inclined conjectures and misconceptions on human rights in Africa, this paper recognises not only the importance of promoting the rule of law, constitutionalism and such fundamental precepts of democracy as a good record of human rights. The paper also argues that in the case of less individualistic societies, such as African and Asian societies, the promotion of social and individual responsibilities - that is, for both the state and the individual - can help to bring about and maintain a desired social order. Such a social order may provide appropriate moral and ethical incentives which could, in turn, serve as preconditions for social development. The maintaining of social order in this manner requires a shift in the intellectual discourse from placing greater emphasis on individuals rights to looking at responsibilities of both individuals and the state in the promotion of social development. It is acknowledged here that while a good record of human rights in any country not only serves as a hallmark of civility, but also speaks well of the level of social development in that country, the process and experience through which every society advances towards civility and social development is conditioned by different variables and concrete realities. Against this background, what, then, are human rights in Africa and to what extent are they interwoven with the socio-economic and cultural fabric of society?  

3. Misconceptions in the discourse and the deconstruction of such conjectures

Are human rights simply human rights wherever we go, to such an extent that it is not necessary to talk about human right in Africa as if they were different from human rights in Bosnia? When we ask such a question, can we - by that fact alone - be accused of missing the point and that we are misdirecting ourselves by thinking that human rights are a simple creation and child of the West? But does good reasoning not require us to view things in an appropriate context that sets the legal dimension to social development in its social, political and economic context? Public international law provides some useful insights here. Both customary and conventional international law recognises that norms falling under the doctrine of jus cogens, that is, norms from which no state can derogate, include aspects of universal human rights (see generally Harris, 1991; Shaw, 1997; Brownlie, 1990). These norms relate to matters such as the freedom from slavery and genocide (Churchill and Lowe, 1992:171-172; Brownlie, 1990:510-517). Universal rights are so fundamental to every society that many states now consider them as universally applicable in the world (see generally Universal Declaration of Human Rights 1948; Hillier, 1998) .

Closely related to the above examples of jus cogens is the right to life and the freedom from torture. But could we, for example, say that claims about and for homosexual rights in the West are as applicable to Africa as they are in the West? It is such matters that require the critical distinction between various historical contexts of different societies. Are human rights and democracy in Africa to be defined as we are told from the West? To what extent is the notion of human rights free from ideological influences and value judgements of those who conjure these misconceptions? Let us take a more reasoned look at some of the contextual issues surrounding the concept of human rights in Africa.

4. Weighing the concept of human rights against that of responsibilities in an African set-up

Every society is built on a set of values and norms. In the traditional African set-up, for example, a sense of duty and responsibilities, on individuals and their communities, was more paramount than the notion of human rights. In these societies, there were no lobby groups such as the homosexual movement that we know today. People had other priorities to meet and these were probably more pressing and important (see generally Mwenda and Owusu, 1999). Such priorities included meeting the basic physiological needs relating to food security, clothing and shelter. But that is not to say lobby groups such as the gender-equality movement should not operate in Africa. Women must be empowered at all costs (see Mwenda and Owusu, 1999:40-54), although the politics of empowerment must shift emphasis (in the case of Africa, for example, due to the cheap cost of hiring household labour and the presence of dependants in many African households) from kitchen politics to more serious issues such as improving the role and participation of women in politics and major heights of a national economy. Also, laws protecting women from sexual harassment and retrogressive customary practices should be promoted. And all this is above kitchen politics of who is going to cook dinner tonight, wash plates, or change the babys nappies. As I have argued above, the intellectual discourse must shift from placing emphasis on individual rights to addressing responsibilities of individuals and the state. That is how social order was (and is) maintained in the most remote and primitive forms of rural and traditional African government. But, I agree that times are changing fast in the contemporary modern African society. Let us take a further reasoned look.

5. Taking account of the modernisation trend in the Post-colonial African state

In Africa, we are now faced with a growing public agitation for the state to respect the human rights of its citizens. As a result, anything anti-government today - be it for selfish ends or not (e.g. secessionist incidents that are disguised as a peoples right to self-determination) - tends to ride on the wings of human rights. A sudden proliferation of opportunists masquerading as human rights experts and activists has recently emerged. But a number of these opportunists are not in search of human rights. Among other things, their concern is with donor funds and the ideological re-focusing of the continent. Human rights in these parts of the world is, indeed, a lucrative business. But even with the emergence of all these opportunistic and pro-capitalist, laissez-faire tendencies in African society, the various sub-cultures of the traditional African set-up are not entirely obliterated. The change from the Old to the New, when viewed from a dialectical materialist angle, shows that there is often a carry over of some properties from the Old into the New. This explains, for example, the cultural dichotomy and the ambivalence of the post-colonial state in Africa: a silent struggle between values of the traditional African society and norms of modernity and Western civility. In this political milieu, however, we must find a new meaning to the concept of  human rights in Africa.

The African society, as I contend, has largely, and historically, been built on the notion of duty, as opposed to rights. And the case of Africa is not unique in this sense. Other developing societies such as the Asian societies have had similar experiences. In general, rights, in contrast to duties, are aggressive and assertive. Duties, on the other hand, call for modesty and humility, yet at the same time realising the importance of coexistence. In many cases, rights are ego-centric and tend to be jettisoned by surrogate activists in pursuit of their own selfish ends at the expense of the common good. To this end, the pursuit of anarchy is often disguised as an act of human rights. But this view does not exonerate the state from the obligation to respect and uphold the rights of its citizens. Indeed, the view does not call for a conservative and reactionary culture. Rather, the thesis in this study pins down both the state and the individual in as far as civic responsibilities are concerned. Let us take an enlightening example of a young couple that is about to get married.

6. Setting the law in context and some contextual analogies

In the West, it is not uncommon to see Hollywood celebrities enter into pre-nuptial agreements. They have their own good reasons for doing so. But, in an African sense generally, such agreements are hard to conceive of for they are an anti-thesis to the institution of marriage; that is, they are seen as militating against the very essence of marriage where man and woman are supposed to be one. Man and woman, in an African sense, enter into a marriage whose underlying obligations extend to and bind extended families on either side of the couple. Thus, there is an element of individual and social responsibilities generated by an African marriage. In the publics eye, the couple should live together for life without any immediate contemplation or fears of divorce and how property would be shared or split thereafter. Against this view, it could be argued while the African marriage is dictated by a sense of community and social responsibility for a life long commitment, the Hollywood marriage is a disguised form of perpetuated individualism and limited permanency. This Western notion of individualism is then presented to society as a pre-nuptial marital arrangement. Co-operation in such a structure is often temporary because of lack of social cohesion. In the stead of such cohesion, human rights activism takes centre stage and we all know what happens thereafter because responsibilities are not taken as a virtue of maintaining social order.

Generally, the concept of duty requires an individual to place the common good before individual satisfaction. This is how the African society was modelled. Those that went against these norms were seen as outcasts and this explains why for a long time African communities farmed and harvested in groups. It was done for the common good of the extended family. The point being made here is not to revert to the old norms upon which the African society was based. Rather, the argument, which is a challenge to human rights scholars and activists who have advanced Euro-centric notions of human rights in Africa, is that we should deconstruct the Western myth of human rights and permit Africans to re-discover their ideal versions of democracy and human rights. In this respect, the dialectical law of negation of the negation calls us to re-visit the historical context within which human rights are conceived (see generally famous works on Marxist-Leninist thought, e.g. Karl Marxs, Das Kapital; and Vladmir Lenins Selected Works).

In general, however, the concept of relying on duty, which is modelled after the old traditional African society, presents some difficulties because we are faced with many over-enlarged oppressive African state bureaucracies. The concept of duty does not therefore capture the civic obligations of the African state, although it would work well with individual citizens. To overcome this weakness, Africa must move ahead and consider the notion of responsibility as a basis upon which social order should be constructed. The state owes social, political and economic responsibilities to its citizens and, in this respect, the rule of law must be observed and constitutional restraints placed on arbitrary powers of the state (see generally Shivji, 1991).

Equally, the individual owes responsibilities towards the state to refrain from prejudicial acts or omissions such as subversive manoeuvres. Thus, the notion of responsibility is more attractive than that of duty because it is wider in scope and has its pedigree in the moral and ethical domains. By contrast, the notion of duty is rigidly sourced from the legal domain and for it to be effective it must be judicially enforceable and justiciable. Responsibilities, on the other hand, need not necessarily be judicially enforceable or justiciable. Responsibilities, generally, capture the very ethos upon which the common good of society is based. We know that often the state can show that it has no duties towards an individuals well being if that individual lets himself down. But at the same time, we know that there is an element of social responsibility for the state to provide social welfare for pensioners, and to provide education and many more for its citizens (see generally Mwenda and Owusu, 1999).

Once we move away from the aggressive agenda of human rights, which is often confrontational against the state and places no major responsibilities on the individual, yet requiring the all-embracing and oppressive post-colonial African state to observe the rights of its citizens, we can avoid confrontational means to restoring social order. It is important to note that the state machinery of many post-colonial African states is visibly and notoriously oppressive. It is therefore not easy to subject such a powerfully coercive state system to the human rights agenda. By contrast, it would serve strategically useful to place emphasis on an enforceable and well respected Bill of Responsibilities for both the State and the individual. The traditional African society, whose value system is still notable in the contemporary modern African society, was not developed on capitalist laissez-faire values of aggression and individualism. The African society, evolving through different socio-economic epochs, has often shown greater tendencies towards communitarianism; with values and ethos of the common good embedded in social responsibilities of the state and the individual. It is, indeed, futile to attempt to view the concept of human rights in Africa in isolation from the level of development of the continent. Even from the perspective of historical materialism, it could be argued that the Western capitalist system as we know it today developed from a feudal system. But Africa has stagnated somewhere in between the feudal and capitalist systems. We cannot therefore impose a capitalist human rights superstructure on a continent that is not fully capitalist. Economically speaking, the material bases of most African societies have not even developed to levels that can sustain aggressive individualism. There is still a sense of collective and communal responsibilities in many parts of the African society. Therefore, the concept of human rights, which is deeply underscored by the philosophy of individualism, would not find the same attraction and support in such a community than the concept of responsibilities. But that is not to say there is nothing progressive in Western capitalist values. There are elements which are progressive in both the traditional African set-up and the Western capitalist system. What is important therefore is to identify and rationally stitch together into one fabric, and in a pragmatic way, such progressive-looking constitutional elements.

7. Conclusion

In Africa, societal norms must deconstruct legal norms which thrive unconsciously on the basis of Western values of individualism and are archaic to African societal norms. Indeed, I have watched with curiosity the manner in which ideologically bankrupt slogans such as the right to development are sold to the African intellectual discourse on social development. Strenuous efforts are made to categories rights into the first, second and third generation categories of rights - just to bring on board the political rhetoric propagating the right to development and the right to self-determination. Whereas I agree that there is a well established and recognised right to self-determination under international law, it is my view that there is no such thing as a right to development no matter how much we try to justify it under the second or third generation rights argument. A right, by its very nature, must be enforceable and must have a corresponding duty on the other party to respect that right. But, would someone tell me: what duty is there on developed countries to uphold or support the right to development of Third World countries? And would the latter countries enforce such a duty - if there was one, at all - before the International Court of Justice or any other international judicial organ?

Reference materials (books and articles):

Brownlie I., Principles of Public International Law, Oxford: Clarendon Press, 1990.

Churchill R.R., and Lowe A.V., The Law of the Sea, Manchester: Manchester University Press, 1992.

Harris D.J., Cases and Materials on International Law, London: Sweet and Maxwell, 1991.

Hillier T., Sourcebook on Public International Law, London: Cavendish Publishing, 1998.

Mwenda K.K., and Owusu G.S., Human Rights Law in Context: The Case of Ghana, The Review of the African Commission on Human and Peoples Rights, Vol. 8, Pt 1, 1999.

Shaw M., International Law, Cambridge: Cambridge University Press, 1997.

Shivji I.G. (ed.), State and Constitutionalism: An African Debate on Democracy, Harare: SAPES Books, 1991.

) Dr. Kenneth Kaoma Mwenda is a Rhodes Scholar and former law lecturer in the University of Warwick, UK. The views expressed in this paper are entirely those of the author and they do not represent the views of any institution or organisation to which the author is affiliated. For comments and responses to this paper, the author can be contacted at the following e-mail address: KMwenda@yahoo.com

Published 09/09/00