Today, more people enjoy more rights than ever before, but more people are also more aware of the limitations of Africa’s human rights regimes. Indeed, as the promoters of human rights have proliferated so have the perpetrators of abuses among state and civil society actors. The state no longer has a monopoly on vice, if it ever did, no more than civil society has a monopoly on virtue in the protection of human rights; both are as likely to undermine human rights as to uphold them. Similarly, the international arena is as much a source of inspiration and support as of much sorrow and grief. And the prospects for human rights in Africa remain firmly latched to the wobbly ox-cart of development.
My presentation seeks to explore the recent changes that have occurred in Africa’s perennial struggles for human rights. It is divided into three parts. First, I discuss the changing contexts of human rights regimes that have structured African political economies since the 1990s. Second, I examine the question of in human rights discourses in and on Africa by revisiting some of the debates about the generations and hierarchy of rights. Finally, I look into the role of the state and society in developing or undermining human rights norms.
Contemporary African politics is marked by many complex and contradictory dynamics, four of which can be singled out for particular attention, namely, democratization, globalization, regionalization, and militarization, whose impact on human rights is equally complex and contradictory. Singly and collectively these factors have simultaneously facilitated and forestalled the growth and pursuit of human rights and development in Africa.
For the purposes of this presentation democratixation can be examined from three dimensions, the empirical, legal, and theoretical. There is ample evidence that since the turn of the 1990s the number of states following and abiding by features of democratic governance—principally elections and multi-party politics—has increased, notwithstanding reversals, blockages, and manipulations by Africa’s wily dictators, many of whom have learned to maneuver democratic politics to their advantage, and despite the fact that in many countries the new democracies amount to little more than the recycling of fractions of the same bankrupt political class, and elections are often marred by harassment and intimidation of the opposition, violence, vote rigging and human rights abuses, not to mention third term campaigns to allow incumbent presidents to stay beyond the constitutional limits of two terms.
The growth of democratically elected governments and governance has been accompanied by the expansion of legality as more domains of public life are governed by the rule of law established by democratic procedures. The tentacles of authoritarianism and arbitrariness have been withering as new rules are set establishing term limits for presidential office and stricter separation of powers between the various branches of government, and as demands for accountability are translated into public policies and popular opprobrium against corruption. To be sure, corruption remains endemic in many countries and the rule of law is still observed more in the breach than in compliance, but the political costs of doing so have risen.
More difficult to decipher and quite contentious in the literature is the impact of democratization on human rights. It is generally agreed that democracies are less repressive than autocracies. The positive correlation between democracy and respect for human rights is based on the assumption that democratic leaders are more accountable to their citizens and that coercive agents within democratic states not only wield less power than other competitive groups, but the availability of less coercive means of conflict regulation (such as elections) provides both a constraining factor and a preferable option. But the effects of democratization (the moment of transition from autocracy to democracy) on political repression are more complex. It has been demonstrated in many instances that repression may actually increase in new democracies because of lagging repressive tendencies from the past and the propensity for protest behavior to increase at such times. Some call this the “more murder in the middle hypothesis.”
Many of these analyses tend to focus on the state as the progenitor of human rights terror and repression. The role of civil society in engendering human rights violations is quite critical and even more so during democratic transitions when centrifugal pressures can intensify as long suppressed group conflicts and identities find release in the newly opened political spaces where they sometimes proceed to produce and perform their chauvinisms and antagonisms, both real and imagined. Keen to shore up its power and authority the state often becomes embroiled in the volatile vortex of conflicting group claims and struggles, in the process of which repression can increase that may ultimately abort the democratization process itself or threaten the very integrity of the nation-state.
Africa offers numerous examples of escalating conflicts and human rights violations since the recent wave of democratic transitions began in the 1990s. Ethnicity has proven particularly salient as the most lethal social cleavage engendering conflict and repression. Since colonial times, ethnicity has embodied both moral and political imperatives; moral ethnicity constitutes a complex web of social obligations, loyalties and belonging, whereas political ethnicity is manifested in the mobilization of ethnicity—the proverbial “tribalism”—in intra-elite struggles for state power. In the formulations of Peter Ekeh and Mahmood Mamdani ethnicity is integral to Africa’s bifurcated civil society; it serves as a primordial public for the masses estranged from the civic public of the elites, a sanctuary that extends its comforts and protective tentacles to the victims of political disenfranchisement, economic impoverishment, state terror and group rivalry.
As the suffocating lid of state tyranny is lifted during moments of democratic transition the suppressed voices and expectations of civil society surge, but the stresses and strains arising from the competitive grind of democracy often find articulation in the entrenched identities, idioms, and institutions of ethnic solidarity. The case of Nigeria is quite illustrative in this regard. The democratic opening of 1999 has been accompanied by the resurgence of ethnic identities and proliferation of regional and local struggles over the entitlements of citizenship expressed in the language of “indigenes” and “settlers.” These struggles have increasingly spilled into the formation of ethnic militias that have wrought havoc on Nigeria’s civil society, unleashing periodic convulsions of inter-communal violence. Long a country with a militarized state, the militias are militarizing society and helping to expand the culture of violence that is inimical to human rights and development. Religious conflicts have also periodically erupted into communal violence.
Democratization seems to have given a new lease on life for renewed regional integration, which has had largely positive effects on human rights in so far as the new institutions have incorporated principles and protocols to advance human rights. Also, many new human rights bodies have been established at the continental, regional and sub-regional level. No less critical are global forces and movements including those among the African diaspora that have emerged and are supportive of human rights struggles and agendas on the continent.
The African Union (AU), launched in July 2002, which supplanted the Organization of African Unity, is perhaps the most significant regional integration initiative in decades. The Constitutive Act of the AU clearly stipulates that one of the objectives of the Union shall be to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples Rights and other relevant human rights instruments.” A series of principles related to human right are stated in Article 4: “promotion of gender equality; respect for democratic principles, human rights, the rule of law and good governance; promotion of social justice to ensure balanced economic development; respect for the sanctity of human life, condemnation and rejection of impunity and political assassinations, acts of terrorism and subversive acts.”
Specifically the AU has created a number of organs that are critical for the human rights, principally the Pan-African Parliament, the African Court of Justice (ACJ), the Economic, Social and Cultural Council (ECOSCC), and the Peace and Security Council. Another critical organ of the AU that is fundamental to its ambitions to promote development and human rights is the New Economic Partnership for Africa’s Development (NEPAD) and its African Peer Review Mechanism (APRM). Adopted in July 2001, NEPAD is an ambitious strategy and program for Africa’s renewal. It focuses on four key objectives: democracy and good political governance; economic and corporate governance; socio-economic development; and the implementation of the African Peer Review Mechanism. Human rights are supposed to feature prominently in the pursuance of the first objective. While few would quibble with NEPAD’s objectives or many of its plans, some regard its expectations of massive international donor support as unrealistic. Critics have also accused it of pandering to and sanctifying the same neo-liberal prescriptions of the international financial institutions that have done so much to wreck African economies. The lack of civil society involvement in the drafting of NEPAD has been another bone of contention for many scholars and activists.
In addition to NEPAD and APRM there are numerous other human rights organizations that have emerged recently. The proliferation of African human rights instruments is a sign of the growing importance of human rights on the continent, but also a source of concern, contends Shadrack Gutto, in that many share the same mandate and “the multiplicity of mechanisms leaves ordinary victims and survivors lost and sometimes without effective and appropriate remedy,” which is itself a recognized form of human right abuse. The African Commission on Human and Peoples’ Rights (ACHPR) adopted in 1981 and entered into force in 1986 remains the continent’s premier human rights body, whose work is in need of urgent reform and improvement. Among the new bodies are the African Charter on Rights and Welfare of the Child and the African Court on Human and Peoples’ Rights (its protocol was adopted in 1998 and entered into force in 2004), not to mention the truth and reconciliation commissions and special courts that have been established in some countries.
At the international level, there are the two international criminal tribunals for Rwanda and Sierra Leone prosecuting genocide, war crimes and crimes against humanity in the two countries. The establishment of the International Criminal Court in 2002, in the teeth of U.S. resistance, has rightly been hailed as a milestone in international human rights law and enforcement. The African diaspora, both the historic and contemporary, have also become increasingly vocal in protesting against human rights abuses in Africa. TransAfrica’s campaign against Sani Abacha’s dictatorship in Nigeria shows this clearly. In recognition of the progressive role that people in the diaspora can play, diaspora representation and participation will be included in ECOSOCC.
Globalization constitutes an important dynamic that has significantly transformed the discursive and material contexts in which human rights ideas, policies and instruments are articulated and implemented. There is little agreement in the literature on what globalization actually means as a process, project and period in world history. To its advocates—the hyperglobalists—globalization is seen as a new phenomenon involving a fundamental restructuring of the global system, whereas to its antagonists—the skeptics—there is really nothing new about globalization. The ambivalents—the transformationalists—straddle the two positions arguing that the contemporary wave of globalization surpasses that of earlier epochs in terms of the extensity of global networks, the intensity and impact of global interconnectedness, and the velocity of global flows.
For me globalization as a process refers to growing and deepening transnational flows among continents, countries and communities of materials, practices, peoples, ideas and symbols, from commodities to capital, images to information, labor to leisure, rights to reflexivities, viruses to visions. It has different dimensions—technological, economic, political, and cultural—each of which has its own internal particularities and propensities. As a project it is an ideological construct for global capitalism and neo-liberalism specifically designed to promote the liberalization and integration of world markets.
The relationship between globalization and democracy is especially complicated. The number of “democratic” states has increased as globalization has spread, which would seem to suggest a conjunctural, if not causal, connection between the two. In fact, there are those who attribute the spread of democracy in Africa in the 1990s to the demonstration effects of communism’s extinction in central and eastern Europe and to the examples of western democracies, transmitted to Africans through CNN and the BBC, and the conditionalities of the international financial institutions, leading some to even call them “demonstration democracies” created to please international donors.
Such characterizations betray ignorance of Africa’s long histories of struggle against the tyrannies of slavery, colonialism and the postcolonial perversions of power. Nonetheless, it is true that many of these democracies, like the older and truncated democracies in other parts of the world, including the global North are minimalist, in which democracy is reduced to periodic electoral contests, unencumbered by any developmentalist and distributive objectives. Many can be termed “illiberal democracies” or “choiceless democracies” characterized by rising corporate control and electoral disenfranchisement.
In so far as globalization represents an increase in the power of capital over other social classes, it contributes to the shrinkage of democracy. Repression of labor is seen as essential for attracting multinational corporations and direct foreign investment. As is quite evident in Africa, the austerities of structural adjustment programs not only increase poverty, but also require authoritarian governance. In short, as capital and neoliberal ideology have become more dominant, the sphere of private and unaccountable decision-making has expanded while that of public and accountable decision-making has diminished. The power of people to influence policy democratically at the national level is reduced by globalization, yet at the global level there are no democratic institutions to enable people to effectively control or influence their destiny. The “old geographies of democracy” have been shifting as the scales of political representation and economic organization have become increasingly incongruous.
In this context, the expansion of democratization appears less a bequest of capitalist globalization than its nemesis. Democratization has emerged in the cracks of the mismatch between capital and labor, in the dialect of new repertoires of power engendered by globalization itself and its vulnerabilities that facilitate workers and other subaltern social classes to develop their own local and global networks of resistance and empowerment. This is to suggest that analyses of globalization must pursue a dual analytical agenda, mapping out the capital logic of globalization and the logic of struggle by the powerless, disenfranchised, dislocated, and immiserated working peoples of globalization.
The democratic and human rights dividend of the end of the Cold War remains to be realized. A study by David Cingranelli and David Richards examining the extent to which respect for human rights had improved after the Cold War covering 79 countries found that governments’ respect for the four physical integrity rights—torture, extrajudicial killings, disappearances, and political imprisonment—remained the same as before for the first three and only improved for the last one, most dramatically in Africa. In fact, there was more torture globally in 1996 than there had been throughout most of the Cold War. The data showed that states in intermediate levels of democracy—undergoing democratic transition—did not “show significantly better respect for physical integrity rights than those with no democracy.”
The policies of the major powers have not always helped in the promotion and protection of human rights in Africa. The European Union countries and the United States are the most critical players in this regard. In the 1990s the official rhetoric of western governments put a premium on the promotion of democracy as a necessary condition for development, and economic assistance was increasingly tied to political conditionalities for good governance and respect for human rights. Notwithstanding these declarations, the argument seems compelling that the conditionalities were imposed “to ensure a continued minimum of popular support for aid, since development assistance had lost most of its political rationale with the ending of the Cold War.” It could be added that conditionalities were also a means of currying favor and co-opting African pro-democracy movements that often called for the suspension of foreign aid to accelerate the collapse of the besieged dictatorial regimes.
It is tempting to see western rhetoric about democracy and human rights as part of the discursive arsenal of neo-colonialism in the post Cold War era, invoking earlier discourses of “civilization” and “modernization” and wielded as weapons of mass deception for voting publics in the global North and the victimized peoples of the global South. The terrorist attacks on the United States on September 11, 2001, removed the rhetorical gloves and exposed the primacy of the naked fist of national security for the world’s self-proclaimed champion of democracy.
The changing contexts of militarism have serious implications for democratization and human rights in terms of the impact of military expenditures in general and its effects on people’s security in particular. For contemporary Africa, militarism manifests itself primarily through internal conflicts and wars and the U.S. led war against terrorism, both of which are deleterious for building and consolidating cultures of democracy and respect for human rights.
Military expenditures have been expanding worldwide, all in the age-old names of national security and independence. Total global military expenditures grew by 18 percent between 1994 and 2003, from $742 billion to $879 billion, 2.4 percent of the world’s total gross domestic product. Although no African country was among the world’s 15 largest military spenders led by the United States, Japan, the United Kingdom, France and China, in that order, four were among the twenty with the highest military burdens as a share of GDP, led by Eritrea 23.5 percent, Burundi 7.6 percent, Liberia 7.5 percent, and Ethiopia 5.2 percent. Not surprisingly, the expenditures on health and education were much lower in these countries.
High military expenditures undermine economic well-being by diverting invaluable human, material, and financial resources. The trade off between defense and growth is well-established: “It has been estimated that for every 1 percent of GNP devoted to military spending, overall economic growth is reduced by about 0.5 percent.” “The result is a diversion,” contends William Felice, “of resources away from the collective human rights of education, health care and subsistence. The implementation of basic economic and social rights depends upon a shift in scare resources away from militarism and towards these areas of human need.”
As for warfare itself, of which Africa has suffered its fare share, it has a dreadful impact on people through direct and indirect deaths and injuries, sexual crimes and intimidation, population dislocations within and across national borders, the damage and distortions caused to societal networks and the fragile social capital of trust and interpersonal associations and intergroup interactions, not to mention the devastation of the ecosystem, agricultural lands and wildlife, the destruction of society’s material and mechanical infrastructures, the outflow of resources including “capital flight” and “brain drain,” the proliferation of pathological and self-destructive behaviors, and the deterioration in the aesthetic quality of life.
This offers a compelling reason for rethinking the concept of “security” tied to militarism, which at best creates the negative peace of deterrence, rather than the positive peace and security that can only arise from the elimination of the causes of war and violence and the protection of human rights and social justice within countries as well as between countries. Unfortunately, after September 11, 2001, with the U.S. led war against terrorism the world, including Africa, entered a particularly dangerous phase in the promotion and protection of human rights and development.
America’s sanctimonious crusade against terrorism including its illegal invasion of Iraq on the false premises that the country possessed weapons of mass destruction has caused grievous damage to international law and human rights principles and standards in the United States itself and worldwide. Many people around the world see the U.S. administration, to use the words of the Council on Foreign Relations, “as arrogant, hypocritical, self-absorbed, self-indulgent, and contemptuous of others.” To many the U.S. behaves as much of a rogue state as the states it condemned as the “axis of evil.” The imposition of a stringent homeland security regime at home threatened the civil liberties of U.S. citizens and the rights of immigrants especially Muslims and people of “Middle Eastern” appearance.
The scandals of the “legal black hole” at Guantánamo Bay in Cuba Abu Ghraib in Baghdad with its pornographic images of torture, primal degradation, and gratuitous humiliation of Iraq prisoners unleashed a wave of worldwide dismay, contempt, and anger against the United States. These actions threatened to undermine the counter-terrorism measures by invoking the very instrumentalities of terrorism in their disregard for human rights, in ostensibly pursuing security at the expense of respect for human dignity. They also provided alibis for governments including many in Africa, as well as international agencies, to violate or vitiate their human rights commitments and to tighten asylum laws and policies.
Many governments rushed to pass broadly, badly or cynically worded anti-terrorism laws and other draconian procedural measures, and set up special courts or allowed special rules of evidence that violate fair trial rights, which they used to limit civil rights and freedoms, and to harass, intimidate, and imprison and crackdown on political opponents. This helped to strengthen or restore a culture of impunity among the security services in many countries. Amnesty International has issued reports critical of new draft anti-terrorism laws in several countries from Kenya to Tunisia that threaten to undermine international human rights standards. African friends and foes of the United States have been basking in the new climate of intolerance and impudence. The war on terror had another collateral damage for Africa: it has inflamed, as the Human Rights Watch 2002 report noted, “pre-existing political tensions between Muslim and Christian populations in a number of African countries” from Côte d’Ivoire to Ethiopia to Kenya to Nigeria to South Africa and to Tanzania.
The contexts and conditions examined above make it quite difficult for the promotion and protection of human rights. The problematic nature of human rights is of course not confined to the practice of human rights, but is inherent in the very definition, the discourses of human rights. The tendency has been to divide human rights, to valorize some and dismiss others. I believe, quite strongly, that it is futile and unproductive to seal rights in strict confinements, to sequester them in dichotomies and polarities, for all forms of human rights are ultimately interrelated, interdependent, and indivisible.
As I have noted at length elsewhere, human rights discourses often suffer from four analytical traps. They tend to be idealistic, legalistic, dualistic, and ethnocentric; idealistic in that human rights are reduced to ideas abstracted from social history, so that they are seen as the outcome of concepts not conflicts, insights not instigations, philosophy not politics; legalistic in that their provenance is primarily located in the courts not culture, procedure not practice, rhetoric not reality, codes not contingency; dualistic in that they either polarize or prioritize civil and political rights against economic and social rights and vice-versa; and ethnocentric in that their source is usually located in the West by both the universalists and relativists. The simple truth of the matter is that human rights have evolved out of concrete historical conditions and struggles, not simply textual or legal disputations, and they will continue to do so as human societies and needs change and new challenges and threats emerge, and there is no intrinsic reason that one set of rights—political and civil or economic and cultural rights—is inherently superior in promoting and protecting human dignity. In short, the internationalization and universalization of human rights is an ongoing process to which all world regions and cultures will continue to make contributions.
Particularly unfruitful has been the debate between human rights universalism and relativism. The advocates and proponents of the two positions, whether framed in North-South oppositions or among radicals and conservatives within specific regions and countries, are essentially engaged in the production of ideological hegemony, each providing alibis for their respective governments and movements. It is well to remember that during the Cold War relativist interpretations of human rights suited western interests in dealings with Third World dictatorships. It was only after the end of the Cold War that the West became uncompromisingly universalist, now in pursuit of its global capitalist agenda, which it was prepared to defend at the cost of violating the same freedoms and democracy it purported to advocate. In the meantime, leaders in the South, boxed between western pressures and popular struggles for democratization and human rights reacted by espousing more and more relativist positions. Thus, different groups have supported the relativist and universalist perspectives at different times, rendering each one of them a potential tool of both oppression and liberation depending on the context.
Contestations of human rights are not new even within specific regions, including in the so-called western world where different ideological and political traditions and perspectives—religious vs. secular, liberal vs. Marxist, nationalist vs. internationalist, philosophical vs. pragmatic—have battled for supremacy for a long time. Indeed, it is ultimately counterproductive to turn the idea of human rights into “Western”, “Asian”, “African” or “Islamic”, for that would turn the language of human rights “into a rhetorical weapon for intercultural competition…. What is needed…is a critical defense of universal human rights in a way that gives room for different cultural and religious interpretations and, at the same time, avoids the pitfalls of cultural essentialism.”
Certainly human rights are not organic to or a natural result of a fictive western tradition going back to ancient Greece, a teleological narrative of retrospective appropriation that is fundamentally ahistorical and intellectually flawed. An international human rights regime will only emerge out of what Heiner Bielefeldt calls “a cross-cultural ‘overlapping consensus’ on basic normative standards in our increasingly multicultural societies.” The idea of “human dignity”—ridiculed by some as characteristic of societies that have yet to develop a concept of “human rights” is the only thread that connects the world’s different religious, philosophical, and cultural traditions. And human dignity for the human person with his/her multiple dimensions must surely encompass multiple rights.
The division and hierarchy of rights emerged out of international ideological struggles after the end of the Second World War, many of them played out in the confines of the United Nations (UN). In the early years of the UN, the U.S. and its allies were dominant and they succeeded in splitting the proposed human rights covenant into two, one for CPR, which they championed, and the other for ESCR, which found loud support in the Soviet Union and among its allies and the emerging Third World, despite a resolution by the UN General Assembly that the two groups of rights were “interconnected and interdependent.” In the 1960s many of the organs of the UN, including those involved in the institutionalization of human rights norms such as the UN Commission for Human Rights (UNCHR) were increasingly dominated by Third World countries organized around the Non-Aligned Movement. The early 1970s were the heydays of Third World militancy and demands were made for the restructuring of the international system. It was in this context that in 1972 a Senegalese jurist, Kéba Mbaye, proclaimed the right to development (RTD), which was adopted seven years later by the UNCHR. Soon other rights, for example to peace and a protected environment were added to the repertoire of what came to be known as solidarity rights (SR).
This gave rise to the notion that there were three generations of rights, a loose analytical construction proposed by scholars that soon acquired a rigid ideological life of its own that has been unproductive for human rights discourse. According to this schema, CPR are first generation rights apparently rooted in eighteenth century bourgeois revolutions in France and the United States (never mind that in the U.S. many CPR rights like the right to vote only came in 1920 for white women and in 1965 for racial minorities); ESCR then constitute second generation rights and their paternity was awarded to the socialist revolutions of the early twentieth century (forget the strong commitment to these rights by the Roosevelts that was overtaken by anti-communist paranoia in the U.S. in the 1950s); and development rights are supposedly part of third generation solidarity rights that emerged from anticolonial revolutions after the Second World War (how about earlier nationalist struggles in nineteenth century Latin America and elsewhere also motivated by the desire for national independence and development?).
It is often said the first generation rights are negative rights (requiring states to protect individual autonomy and freedom), while the second and third are positive rights (requiring states to promote collective well-being). These distinctions are not entirely false. Certainly western countries have been the chief proselytizers of CPR, while ESCR found particular favor among socialist countries, and RTD is deeply cherished by many in the global South including Africa. Their implementation also entails different things, in the case of CPR limiting state intrusions while in the case of ESCR and RTD expanding state interventions. Broadly stated the former are freedom claims the latter resource claims. But there is really no Chinese wall that separates these claims in terms of their spatial provenance, let alone in their import for human dignity and security.
The search for hierarchy among rights is not only driven by ideological contestations, but also by the fact that, as Theodore Meron has argued, “national legal systems are characterized by a well-established hierarchy of norms.” It is extremely difficult to create widely accepted criteria or standards to choose between what some see as fundamental human rights and other rights and select the fundamental human rights. More often than not, the characterizations of fundamental rights pander to subjective preferences based on national traditions and aspirations. This is one more reason for jettisoning regional ethnocentricities and developing bases and processes of norm setting that involve as much of the international community as possible.
This is what is sometimes called an interpretive approach that valorizes cross-cultural dialogue as the most viable means of constructing an international human rights regime. Some believe that the proliferation of human rights instruments makes it necessary to establish a list of nonderogable rights and ranking such rights ahead of derogable rights. But Abdullahi An-Na’im argues forcefully that “to affirm the full human rights quality of ESCR, it is necessary to abandon any classification of human rights, and approach the implementation of each specific right on its own terms, instead of limiting it to what is deemed appropriate for one purported class of rights or another.”
The state has a responsibility to ensure the promotion and protection of human rights principles, norms, and instruments. Civil society also has a role to play through its struggles and participation in building a human rights culture. In examining the nexus between the state and human rights we can look at the articulation of human rights in terms of recognition and enforcement, the levels at which the norms are articulated from domestic to the regional to the continental and the global, and the coordination between the forms and levels of articulation.
There is a high level of human rights norm recognition in African constitutions including a distinctive emphasis on duties and social economic rights. According to Christof Heyns and Frans Viljoen, “most African states have ratified many of the six most important United Nations human rights treaties,” with rates of between 21 percent and 29 percent of global ratification totals. As for regional instruments, Africa together with Europe and the Americas are the only regions with regional human rights protection systems. The African regional system is anchored on the African Charter on Human and Peoples’ Rights, which recognizes both civil and political rights and social and economic rights as well as rights and duties.
But enforcement is relatively weak. The enforcement mechanism through the Commission on Human and Peoples’ rights, for example, remains problematic. Charged with promoting and protecting the rights in the Charter, the Commission has been particularly slow in implementing its protective mandate, partly because of its rather low funding and staffing levels, and the difficulties of guaranteeing effective regional diversity and independence of the Commissioners. Above all, the Charter itself needs to be revised to reflect new circumstances and improve its enforceability. Also, the development of subregional institutions and an indigenous African human rights jurisprudence and enforcement system are crucial.
The domestic level is the most important in the protection of human rights, followed by the regional and global systems. The domestic level has the benefit of direct enforcement and the regional has the advantage of peer pressure that the global often lacks. The sub-regional economic associations such as ECOWAS, SADC, the Maghreb Union, and the Common Market of Southern and Eastern African States (COMESA) tend to be quite weak in their human rights norm recognition and enforcement. As we noted earlier, the AU is trying to strengthen its human rights promotion and protection mechanisms through the creation of various instruments. The effectiveness of these mechanisms and their capacity to facilitate the coordination of human rights norm recognition and enforcement among its member states have yet to be proven.
The interface between civil society and human rights raises many complex issues about the nature of African civil societies, the role of non-governmental organizations (NGOs) as the most developed forms of civil society engagement in human rights discourses and practice, and the question of popular participation as mediated by the social inscriptions and hierarchies of gender, class, religion, and language. Even if one does not agree with Eke’s and Mamdani’s characterization of African civil societies as bifurcated, the fact remains, whatever measures are used, civil societies have expanded; the ties that bind the multicultural societies of African nations together and the tensions that tear them apart are extraordinarily complex requiring deft strategies of community and conflict management in which respect for human rights must rank high indeed as a powerful adhesive of common citizenship and a dissolvent of communal conflicts.
In the last two decades human rights NGOs have emerged as powerful instruments in Africa’s drive for the promotion of human rights and development. The proliferation of NGOs is one of the truly remarkable stories of African social and political transformation. The NGO movement is both a progenitor and product of Africa’s democratization. But the euphoria that once greeted NGOs has been replaced by more sober assessment of the challenges they face. Makau Mutua is particularly critical of human rights NGOs. He charges that many of them are replicas of their northern counterparts in their organization, objectives, tactics and strategies. Indeed, they are largely dependent on Northern resources and support.
While the international human rights NGOs have made positive contributions to, and some have worked in partnership with, African NGOs, Mutua believes that the relationship has been characterized mostly by paternalism and dependency which limits the capacity of African NGOs to undertake independent initiatives, address the human rights needs of their societies in an integrated manner by going beyond the obsession with their civil and political rights and incorporating violations and promoting economic, social and cultural rights, developing more fruitful South-South cooperation and networking, and cultivating local sources and structures of support, without which their long term future is doomed.
Claude Welch is more sanguine about the nature of North-South NGO relations. He thinks there is a growing solidarity of purpose between indigenous and international NGOs and between some NGOs and members of society. He shows, for example, that the International Commission of Jurists—once headed by Senegalese Adama Deng—played a critical role in the preparation and ratification of the African Charter on Human and People’s Rights. Similarly, Amnesty International—also once headed by Senegalese Pierre Sané—and the Africa Division of Human Rights Watch have moved increasingly toward cooperation with indigenous NGOs in their investigations and reporting. On the whole, he stresses, human rights NGOs have made significant accomplishments, although he concedes that they tend to be small in size, limited in budget, cluster in urban areas, concentrate on civil and political rights, and are dependent on external sources.
The two positions find echoes in many other studies of human rights NGOs. Clearly, the missions and roles of NGOs change with new circumstances. This is no better illustrated than in South Africa where NGOs played a crucial role in the country’s tumultuous transition from apartheid to democracy. During the 1980s, when their numbers expanded, NGOs were not merely non-governmental, but anti-government, and were an integral part of the mass democratic movement. With the demise of apartheid in the 1990s, the NGOs found themselves in uncharted waters: donor support dwindled, some of their leaders joined the state bureaucracy, the new constitution adopted extensive human rights provisions, including a Bill of Rights, and the government established human rights monitoring and enforcement agencies, including a Human Rights Commission. South African NGOs had to redefine their role.
The question of popular participation goes beyond formal associations such as NGOs of course. The mediations of gender, class and religion and other similar social registers are quite important. Given the limitations of time, it would not be possible to discuss fully the ways that class, gender, religion, age and generation have affected and been affected by struggles for democratization, human rights and development in contemporary Africa, except to underscore that they are essential for a comprehensive understanding. It might be pointed out, for example, that the growth of the women’s movement has been critical to struggles for human rights in many African countries, but as the women’s movement has expanded it has become more differentiated in its composition, objectives and tendencies, incorporating within its ranks associations of presidents’ wives, middle class professionals, women traders, peasant women, working class women, income generating activities and cultural organizations.
Similarly, African class formations have been drastically altered by the recessions and reforms of the last two decades that have implications for human rights struggles. Public sector employees have witnessed retrenchment and pauperization, while new entrepreneurial classes have emerged tied to new sectors from information and communication services to private education and health provision. Ordinary workers in particular have faced considerable difficulties as their real wages have fallen or stagnated, but African labor movements have remained at the forefront of the struggles for democracy and progressive social change. With democratization, the conditions for labor organization have improved in law as the corporatist chains of state control have loosened, but become more difficult in practice as employment security has declined thanks to economic liberalization.
Religious movements have also been a crucial part of Africa’s changing cultural and political economies. As noted earlier, the fallout of America’s war on terror has affected Christian-Muslim relations in several countries. No less important, religious groups, both Christian and Muslim, were critical to struggles against state tyranny in the 1980s and 1990s, as they were often the last public spaces to be directly confronted by the state, even if they might harbor their own intolerant visions of reordering society. And the youth—the majority of the African population—have embodied in their restlessness, rebelliousness, apparent delinquency and cosmopolitan affectations the failures and reconfigurations of the postcolonial project, suggesting in their behaviors, actions and pleasures new expressions of political action both violent and non-violent, formal and informal, and desperate desires to escape the bankrupt political and moral discourses, the increasingly sterile obligations of state and gerontocratic power that has robbed them of the long-jaded promises of independence, and to fashion new patterns of socialization and sociability, associational and political commitments, and new aesthetics and idioms of empowerment, living, belonging and citizenship.
At the heart of the drive for human rights in Africa is a linguistic conundrum, the continued supremacy of European languages and the relative marginality of local languages in official human rights discourses. Two issues are at stake, the language of law, that is, the language of politics, the courts, and human rights instruments and documents, and the question of linguistic rights—the rights of languages and to languages—that are crucial for the exercise of freedom of speech and the import of that freedom. Alamin Mazrui has deplored the fact that the entire discourse on human rights is trapped in a European linguistic idiom, which has grave consequences for African human rights culture and consciousness. The imperial languages were introduced to Africa as media of command, not of rights, and after they had shed that role they remained languages of a middle class minority patronized by the West and well attuned to its liberal or neo-liberal doctrines.
Barred from this middle class linguistic enclosure, the ordinary masses, proficient in their own languages that are not languages of the law, government and business, are prevented from influencing the reconceptualizing of the dominant human rights discourse. Indeed, they are excluded from full participation in public affairs, whether parliaments or the courts, and African languages are denied the opportunity to develop a robust legislative and human rights register. Linguistic alienation from the law, Mazrui concludes, may be a major cause of the failure of democracy and human rights culture to take deep roots on the continent.
The challenges of expanding and deepening human rights cultures in Africa are as multifaceted as the contexts that shape them. In this presentation I have tried to argue and demonstrate that while considerable improvements have been made in many parts of the continent in terms of democratization, which has improved the prospects for human rights in general, the constraints against human rights and their realization in all their indivisible multiplicity—civil and political rights, economic and social rights, cultural and development rights, and solidarity rights—remain daunting. But we cannot allow ourselves as progressive academics, as activist intellectuals, to be daunted by the challenges of demystifying and defining, explaining and enabling the struggles for human rights in our beloved Africa. Thank you!