Marian Thomas
There are many arguments that would say the notion of Human Rights was central to all societies – both western and non-western cultures and that non-western communities have long recognized the need for human rights. But, in fact, we see that that there is an alarming amount of evidence to the contrary. The article by Jack Donnelly argues that there is a difference between human rights and human dignity. All societies cross-culturally have some sense of human dignity. The concept of human rights –rights granted just for being human, i.e. the Rights of Man – is just one approach to protecting human dignity – and this approach is more suited for a Western culture. The reason for this is largely rested on the liberal tradition of the West to place a high emphasis on the individual. The individual is given full rights over their body, their ideas, what they say etc. based all on one’s existence. “The individual is placed in a virtually sacralized position.” In African states, people are given personal rights based on their role and membership in a community, family status or social status. There is a section in the article that states that if Africans were the sole authors of the Universal Declaration of Human rights they would rank the rights of communities above individuals. There is also an argument about the importance of having a democracy in order to protect human rights because a democracy would mean a limited government. A limited government doesn’t necessarily lead to human rights. Just because a government has an obligation to its citizens to treat them well doesn’t mean those people will actually benefit.
“The discourse on human rights and rule of law has been contradictory in both Western and contemporary African context.” As a political movement, the idea of rallying behind this rather vague concept of ‘human rights’ doesn’t have a place in many African states. Although using the idea of human rights to establish a fair and equal constitution has been accomplished as a result of mobilization from below (like in S. Africa), it is extremely rare and unlikely in a place like the DRC considering the state of things. Donnelly also touches on the idea of scarcity. When a society is on the brink of total devastation where resources are limited and survival is key – the community must work together. Individual rights do not have a place in war-torn areas of the DRC. Individuals must be prepared to give up their rights. Therefore, it can be argued that human rights are largely “inapplicable” for developing countries. More often than not, constitutionalism under the guise of “human rights” can be used to impose limits on popular movements and mass mobilization. Therefore, when studying human rights and rule of law we must be sure to look at it contextually – just like we do with nationalism or democracy.
To begin, we need to look at how state power has been constructed in response to different social groups – this leads to how a conception of rights is specific to the “African reality.” – and specifically not a western historical experience. The colonial state placed a distinct divide between colonizers and colonized i.e. – the abuse of labor and introduction of an inferior race which has had a far reaching legacy and already makes African states unique to the “human rights” debate. Societies in Africa have for hundreds of years been thought of as inferior – this has to have huge ramifications for indigenous – particularly the uneducated, rural masses to even be able to conceive of a “human right.”
Another instance of how state power has been constructed in response to different social groups deals with independence and the partition of the African continent. When arbitrary lines are drawn – entire communities have through the years become non-citizens in foreign territories. Cross-border migrant labor is huge in African states. Included with this are the incredible numbers of refugees. Today Africa is said to host over half the refugees in the entire world. No where else has large cultural communities been so casually cut up and dispersed into the political domain of other states. These groups become a source for really cheap labor. What is significant about these groups is their status as non-citizens and therefore are without rights. To them the notion of ‘rule of law’ as no significance or relevance. State power is constructed to disenfranchise or exploit large groups for labor.
In regards to states like the DRC, there is a tendency for political regimes like Mobutus to want to monopolize power and deny self-organization to groups fighting for rights. The strength of the dictatorship or oppressive regime is also dependent on a strong working and middle class. But when we looked at the economy of the DRC – we see that the working and middle class is extremely weak in relation to the powerful political elite. In the DRC the issue of state power has been largely settled through an armed struggle – mobilization by the lower class is unlikely. There lacks a strong grassroots element to check the powers of the government.
You can’t study Human rights in Africa without bringing up the impact of the Organization of African Unity and it’s African Commission on Human and People’s rights. The Organization of African unity was established on May 25th, 1963. The philosophy behind the organization was, in short, the preservation of sovereign autonomy in domestic affairs. This means that the 23 original countries in the organization would not interfere in the affairs of the other member states. Changes in leadership – even by unconstitutional means would go unnoticed, boundaries would be protected and, more importantly, even gross violations in human rights on the scale of genocide would be unnoticed or unremarked upon by the other nations. But, following WWII there was a global shift in international law involving human rights. Individual citizen’s well being and safety became more important as a responsibility of the government. There was an internationalizing of human rights and a humanizing of international law. So, on June 27, 1981 the African Commission of Human and People’s rights was founded and the African Charter on Human and People’s rights, a.k.a. the Banjul Charter was drafted. But, the power of this commission remains small. It is still under the control of the O.A.U and therefore works under many restraints. The OAU still largely operates to protect domestic jurisdiction. What is interesting is that the exceptions to that rule are colonialism and apartheid. Only then states could interfere with other states. The OAU, when founded, considered human rights largely a result of self-determination – through the ending of alien or settler rule. Even though the Banjul Charter is based on previous human rights charters like the Universal Declaration of Human rights – the African charter remains largely promotional. The commission is made up of members chosen for their “morality, integrity, impartiality and competence” in matters of human rights. Their countries OAU members nominate them. They collect documents and reports and can request in-depth studies of country’s human rights, ratify campaigns and human rights treaties and work more closely with the UN and other International human rights groups. Most though is promotional. They proclaimed a Human Rights Day, work on integrating human rights in the curriculum of schools, they even give out a prize for best human rights record in a country.
Today the Organization of African Unity has over 50 member states. What has been found is that most states don’t take their obligation to the human rights commission very seriously because they are reluctant to undertake the labor necessary to satisfy Commission mandates. This is definitely the case in the DRC. There aren’t strong repercussions in place that would force states to follow the guidelines. Also, another weakness in the commission has to do with the lack of non-governmental, independent African based sources of information about human rights abuses. What has been found is that to have effective human rights in a country, you need both governmental support and, more importantly, widespread citizen awareness and participation. This is obviously severely lacking in the DRC and surrounding countries.