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It
seems that the human rights movement has not found a warm welcome
in Africa. Given its unpredictable political conditions, it
is understandably difficult if not impossible to enforce individual
rights and freedoms in most of its countries. Most African leaders
and governments have based their poor history of human rights
on the basis of the high expense of implementation, furthermore,
some view human rights movements as a stealthy attempt by the
West to maintain an ideological hegemony over Africa. Furthermore,
even if African countries have expressed a cautious willingness
and dedication to improving human rights standards and the quality
of living for their populations, they have still been hesitant
to adopt more than the minimum of the international human rights
instruments. Their main argument is based on the belief that
human rights concepts and, therefore, the overall movement have
no relevance to Africa because African culture and history require
a unique approach, and thus different solutions (African solutions
for African problems), the bases of this opinion are:
- The
evolution of the international system through history; hence
the most relevant right to Africa is the right to development.
- Africa's
state of poverty makes it impossible to apply Western civil
and political rights.
- The
unique nature of African society, which is based on communalism,
therefore human rights that address individuals rather than
groups are inappropriate to a communal society.
The
refrain that human rights in Africa are considered to be a threat
to sovereignty, and therefore to the principle of non-intervention
has become quite a regular occurrence, especially when governments
are on the defensive concerning their human rights violations.
The reference to state sovereignty is partly due to their history
in general and their fear of post-colonialism in particular.
The tension between national sovereignty and the enforcement
of international human rights standards is thus often highlighted
when governments point to national cultural tradition to justify
compliance failures of international law. |
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From
a conceptual point of view there are two fundamental schools
of thought regarding human rights. The first school represents
a radical opposition to the universal approach based on the
different philosophical bases of Western Europe and Africa.
As there is a lack of insight regarding the individual point
of view in African culture, most human rights principles are
inapplicable there. The second school represents a span of thought
ranging from intention towards an absolute universal ideal to
purely relativistic views. In opposition to both schools, some
African authors have argued for an African concept of human
rights laws based on the notion that Africans are community-
or group-oriented, rather than individualistic and hence the
rights of individuals are not relevant to them. |
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The
main problem with these arguments is that they no longer fit
in with present-day Africa. Today, the rule of chieftaincy barely
exists. Economic crises, unemployment, the fragmentation of
extended families due to labour migration and urbanisation and
other factors have resulted in a trend towards individualism
in certain parts of African society even if the majority of
the population is rural. Moreover, the argument about Africans
being more group-oriented than individualistic fails on the
grounds that it is not exclusive to African society. In every
society, rights accrue to the individual by virtue of membership
rather than by the mere fact of being human. Thus this is not
a basis on which to insist that the African tradition is drastically
different from any other tradition or modern practice: every
society accords its members certain rights by virtue of membership.
Finally the communal version of dignity and justice does not
only describe an African concept of human rights. It also describes
most rural societies' general world view. Such views tend to
work on a small scale level but become more difficult to accept
on a larger scale. Nevertheless, for a majority of Africans,
the unequal allocation of responsibility and privileges according
to age, gender or social status is still a fundamentally valued
way of directing society. However, the continued existence of
ethnic communalism should not be taken as an argument against
human rights in Africa. |
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In
order to fully grasp the African perception of human rights,
first one has to grasp the general concept of law in Africa.
In Africa there is no static or uniform concept of law. It is
rather subject to extreme variation in relation to time as well
as location. For instance, traditional customary law is characterized
by its close connection to the identity and intimate internal
structure of the society in which it operates and from which
it has originated and developed. Moreover, a distinction has
to be made between three major cultural influences still existing
in Africa: Islam, Christianity and animism. Their influence
on the African way of perceiving the law is of great importance.
In African law the group and not the individual is of primary
importance, the social order proceeds on the basis of obligations
which are not sharply distinguished between the legal and the
moral. Justice consists not in enforcing rights but in bringing
about a harmonious settlement between the disputants so as to
assure group cohesion. With this in mind, we can say that current
international human rights standards are by no means alien to
African traditions and could even be defined on the basis of
traditional African value systems and institutional practices.
In fact in some instances, African systems have offered a standard
of treatment that coincides with the rights contained in modern
Western codes. Sometimes the standards of behaviour expected
in Africa even exceed what would be regarded as adequate in
the West. For instance, the right to life in Africa is enshrined
in a general prohibition against killing and in an obligation
to feed and shelter all the members of the community. Undoubtedly,
the African communal concept of social justice has many elements
that could buttress a human rights-based approach and can be
adapted to enable individuals to make enforceable claims against
the State. |
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Maybe
the African norm simply lacks the general legal terminology
used to conceptualise its Western counterpart. More accurately,
we could say that it used to lack the legal terminology. Indeed,
agreeing with the idea that for any law to develop and be productive,
it must be rooted in the culture and tradition as well as in
the realities of the people for whom it is made, the African
states have decided to have their own implementation of human
rights. They have created an implementation that reflects their
values, their traditions and their cultures while complying
with other international mechanisms. |
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For
further information refer to Briefcase. |
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