Gender Rights in Africa: Is it Applicable to the African Context?
The Universal Declaration Of Human Rights: Is It Applicable To The African Context? The Case of Gender Rights in Africa
By Kur John Garang, Oslo, Norway
Introduction:
March 5, 2018 (SSB) — I will begin by first defining the key terms in the title above; universal and human rights. Universal according to Oxford Advanced Learner’s Dictionary means done by or involving all the people in the world or in a particular group and Human Rights according to Donnelly (2003) are literally the rights that one has simply because one is a human being. By combining the two terms, we have Universal Human Rights which can be referred as inalienable rights entitled for all human beings in every part of the world without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Most basically, human rights derive from the mere fact of being human; they are not the gift of a particular government or legal code. But the standards being proclaimed internationally can become reality only when applied by countries within their own legal systems. (Shashi Tharoor, 1999/2000)
According to Vienna Declaration of 1993, all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.
Despite this clear statement from Vienna Declaration obligating states to promote and protect all human rights and fundamental freedoms, African countries had fallen short overtimes and resort to vilifying the declaration as western forwarded agenda. The African nations at certain points and from pressure from international community try to implement the human rights set forth in the Declaration in fraction than as a whole citing that others do not go with local norms and culture and sometimes in the interest of national sovereignty.
The universal declaration, like any list of human rights specifies minimum conditions for a dignified life, a life worthy of a human being. Even wealthy and the powerful countries regularly fall short of these requirements (Donnelly, 2013, p.16).
But before I could discuss in details this Declaration on whether it is applicable to African context, I would first move back to highlight how developing world perceived the Declaration, as Dr. John Garang once said that it is sometimes necessary to move back thousand years in order to gain momentum to move forward and this is why when rams are fighting, they move back to gain momentum before they log horns.
Developing world perception of the Declaration
Since the adaptation of Declaration in 1948, there have been arguments that arose from its universality from developing world on whether the Declaration is applicable to their contexts. And so many views had been expressed positively or negatively from many writers on the universality nature of the Declaration and its compatibility to their norms and values.
According to Tharoor (1999/2000), the philosophical objection asserts essentially that nothing can be universal; that all rights and values are defined and limited by cultural perceptions. If there is no universal culture, there can be no universal human rights. Tharoor’s assertion follows the oldest proverb which says “One’s man meat is another man’s poison. This old adage highlights cultural non-uniformity from around the world and that what can be good for me can be bad for others and what can be universally applied on one part of the world can be relatively applied in another.
Critics from countries that were still colonies in 1948 suggest that the provisions of Declaration reflect the ethnocentric bias of the time. They go on to argue that the concept of human rights is really a cover for Western interventionism in the affairs of the developing world, and that “human rights” are merely an instrument of Western political neo-colonialism. One critic in the 1970s wrote of his fear that “Human Rights might turn out to be a Trojan horse, surreptitiously introduced into other civilizations, which will then be obliged to accept those ways of living, thinking and feeling for which Human Rights is the proper solution in cases of conflict.” Ibid
As Tharoor says above, the west has indeed at numerous occasions intervened in Third world affairs in pretext that they were against human rights abuses being committed there .The point in case is the Libyan protests that led to the ousting of Mohamed Kaddafi in 2011. Although there were human rights abuses committed by Kaddafi’s regime, the subsequent human rights abuses that follow after he was ousted by the West including the recent resurrection of slavery in 2017 has raised eyebrows from the Third world countries especially in Middle East and Africa. This has been exploited by the opponents of the West and the declaration such as Robert Mugabe who had often criticised the West in their call for respect of human rights in Africa , although Francis disagrees with the view widely held in the West and accepted or exploited in developing countries, that the concept of human rights is peculiarly western. Deng says to arrogate the concept to only certain groups, cultures or civilization is to aggravate divisiveness on the issue, to encourage defensiveness or unwarranted self justification on the part of the excluded and to impede progress towards a universal consensus on human rights. (Francis Deng cited by Mutua 2002)
Mutua argues that the human rights enterprise inappropriately presents itself as a guarantor of eternal truths without which human civilization is impossible. Mutua contends that in fact the human rights corpus, though well meaning, is a Eurocentric construct for the reconstitution of non-Western societies and peoples with a set of culturally biased norms and practices. Mutua maintains that if the human rights movement is to succeed, it must move away from Eurocentrism as a civilizing crusade and attack on non-European peoples. Only a genuine multicultural approach to human rights can make it truly universal. Indigenous, non-European traditions of Asia, Africa, the Pacific, and the Americas must be deployed to deconstruct—and to reconstruct—a universal bundle of rights that all human societies can claim as theirs.
Mutua (2002) went on to argue, that the concept of human rights was not alien to pre-colonial societies in Africa and that such notions were the foundation of social and political society, I somewhat agree on this with him on existence of some of the rights but disagree to larger extent in that not all the rights in the declaration existed in the pre-colonial African more especially the rights of women in social, economic and cultural aspects and in some cases even the most basic one such as right to life was not observed in some societies. For example, during pre-colonial times, when a king of Azande kingdom in South Sudan died, ten beautiful girls are brought and buried alive around the graveyard of the king.
Universal Declaration of Human Rights versus African Charter on Human and peoples’ rights
In 1981,The African Union draft and adopt a counter-document to the Declaration called African Charter on human and peoples’ rights in which they spelt out the rights of individual, duties, group rights and their limitations, some actually contrary to the ideals of the declaration. The African Charter uses claw-back clauses such as “within the law”, “provided that individual abides by the law”. The Universal Declaration of Human Rights, unlike African Charter uses derogation clauses which explicitly provide circumstances in which rights maybe limited and define rights that are non-derogable and must be respected, even when derogation is permitted (Kabange Nkongolo).
In reality, many of the current objections to the universality of human rights reflect a false opposition between the primacy of the individual and the paramountcy of society. Many of the civil and political rights protect groups, while many of the social and economic rights protect individuals. Thus, crucially, the two sets of rights, and the two covenants that codify them, are like Siamese twins—inseparable and interdependent, sustaining and nourishing each other.(Tharoor 1999/2000). Still, while the conflict between group rights and individual rights may not be inevitable, it would be naïve to pretend that conflict would never occur. But while groups may collectively exercise rights, the individuals within them should also be permitted the exercise of their rights within the group, rights that the group may not infringe upon. Ibid
Gender Rights in Africa
Rights promoting the equality of the sexes are a contentious case in point. How, critics demand, can women’s rights be universal in the face of widespread divergences of cultural practice, when in many societies, for example, marriage is not seen as a contract between two individuals but as an alliance between lineages, and when the permissible behaviour of womenfolk is central to the society’s perception of its honour? Ibid
The disparity in rights between men and women has been a point of concern and debate in Africa. Women had been disadvantaged in so many social, economic, political and cultural aspects by men prompting a call for equal rights for women as in the Universal Declaration of Human rights. African Charter clause on gender equality also calls on the states to respect and promote women rights as in other conventions and declarations. Article 18 of the African Charter on human and peoples’ rights calls on the states to ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.
Culture and Women rights
Although various African Researchers and governments opposed the Declaration on account that it was born out of western culture and values and that it does not go well or compatible with African values and culture, I disagree with some of those views on the ground that the African values and culture they want to protect in the first place are the major hindrance to human rights of women. For example, the Dinka tribe of South Sudan considers rape as a legitimate traditional method of marriage when the bride or her parent refused the application of the man for marriage. The man and his age mates can lay ambush where the lady usually pass, grab her by force and take her to bridegroom’s home and forced to have sex with him as way of making her to agree to the marriage as she will feel embarrassed. These cultural practises are so de-humanizing and need to be changed and that it will be absurd to oppose a global document that tries to promote a dignity and equality of all human beings. As Tharoor(1999/2000) puts it that there should be nothing sacrosanct about culture. Culture is constantly evolving in any living society, responding to both internal and external stimuli, and there is much in every culture that societies quite naturally outgrow and reject.
The Declaration explicitly defined the rights of all including women and had called on states to dismantle all cultural practises that discriminate women in its Article 18 of the declaration “The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions”.
This article has also been reinforced by Vienna Declaration of 1993 which says “the human rights of women and of the girl-child are inalienable, integral and indivisible part of the universal human rights. And has emphasizes the full equal participation of woman in political, civil, economic, social and cultural life, at the national, regional and international levels and has for the eradication of all forms of discrimination on grounds of sex as priority objectives of the international community. As if that is not enough, it also calls for grounding of Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, and branded them as incompatible with the dignity and worth of the human person and must be eliminated.
The ways to achieving these are by legal measures and through national action and international cooperation in such fields as economic and social development, education, safe maternity and health care and social support. The human rights of women should form an integral part of the United Nations activities including the promotion of all human rights instruments relating to women. The world conference on human rights urges governments, institutions, intergovernmental and non-governmental organizations to intensify their efforts for the protection and promotion of human rights of women and the girl-child.
What Does CEDAW Say on Gender Rights
CEDAW incorporates features of the universal Declaration of human rights (1948), the covenant on civil and social rights and covenant on economic and cultural and social rights and international Labour organization conventions. It has been described as international bill of rights for women. It focuses on eliminating discrimination against women that violates the principle of equality of rights and respect for human dignity (Division for advancement of women 2000:5, cited by Merry 2006).
The convention entered into force in 1981, and as a result the Committee on the Elimination of Discrimination against Women (CEDAW) was officially established. In 1992, the committee affirmed that violence against women was a “violation of their internationally recognized human rights” and “a form of discrimination” that “nullified their right to freedom, security and life.” The committee asked governments to identify and end customs and practices that perpetuate violence against women. It urged them to conduct public education, create safe havens, institute counselling and rehabilitation programmes for victims, sensitize law-enforcement officials and draft relevant laws to protect women against all kinds of violence. (Kimani, 2012).
Unfortunately, few countries have met those obligations. Many countries do not collect information on violence against women, so there is little data available to assess whether measures are having any impact. Worse, few countries have enacted laws to prevent abuse. A 2011 report on progress of the world’s women by UN Women, the UN body responsible for gender rights, reported that only 21 sub-Saharan countries had specific laws against domestic violence. Ibid
Many countries that are party to the convention still have no laws specifically outlawing domestic violence and sexual harassment. The sexual violence bill in Kenya, for example, passed only after certain sections, such as one that would have outlawed marital rape, were removed. Ibid
In a report by the UN Population Fund (UNFPA) in 2000, the agency noted that in interviews in Africa and Asia, “the right of a husband to beat or physically intimidate his wife” came out as “a deeply held conviction.” Even societies where women appear to enjoy better status “condone or at least tolerate a certain amount of violence against women.”
A study on domestic violence in Uganda by the US-based Human Rights Watch (HRW) found that families justified forcing widows to be inherited by other males in the family with arguments that the family had “all contributed to the bride price” and that therefore the woman was “family property.” Once inherited, a widow lost her husband’s property, which went to the new husband. And if a woman sought separation or divorce, the dowry had to be reimbursed. Often, the study found, “a woman’s family is unable or unwilling” to refund the dowry, and her brothers may beat her to force her back to her husband or in-laws “because they don’t want to give back cows.” Ibid
CEDAW explicitly calls for cultural changes in gender roles. In its Article 2f, it calls on states parties “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practises which constitute discrimination against women”.( Division for the advancement of women 2000:14 cited by Merry 2006). Article 5a on sex roles and stereotyping calls on states parties to take all appropriate measures “To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practises which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles of men and women”. Ibid
It also emphasizes equal rights for men and women and explicitly prohibits discrimination on basis of sex. Like other human rights discourse and instruments, it is committed to universalism: to the idea that there are minimal standards of human dignity that must be protected in all societies. (An-Na’im 1992 b: Schuler 1992: Wilson 1996: Ignatief 2001, cited by Merry 2006).
What is hidden in the store in Africa?
Those who champion the view that human rights are not universal, frequently insist that their adversaries have hidden agendas. In fairness, the same accusation can be levelled against at least some of those who cite culture as a defense against human rights. Authoritarian regimes who appeal to their own cultural traditions are cheerfully willing to crush culture domestically when it suits them to do so. Also, the “traditional culture” that is sometimes advanced to justify the non-observance of human rights, including in Africa, in practice no longer exists in a pure form at the national level anywhere. The societies of developing countries have not remained in a pristine, pre-Western state; all have been subject to change and distortion by external influence, both as a result of colonialism in many cases and through participation in modern interstate relations. (Tharoor, 1999/2000)
You cannot impose the model of a “modern” nation-state cutting across tribal boundaries and conventions on your country, appoint a president and an ambassador to the United Nations, and then argue that tribal traditions should be applied to judge the human rights conduct of the resulting modern state. Ibid. This is the case in Africa where the countries all have their ambassadors at UN and had ratified some of the UN conventions and declarations and at home they continue to vilify these conventions and declarations of which they are obliged to.
Conclusion
The Universal Declaration of Human Rights although it is facing opposition in many African countries, it remains one of the powerful declaration which has called for the equality and dignity of men and women without distinction of any kind. In Africa where governments are the major violator of human rights of individuals and groups, the declaration remains the eye-opener for Africans whom for one reason and another had lost trust from their governments, and from the African Union which has been complicit in human rights abuses committed in the continent and sided with many African leaders who had caused a lot of rights abuses. Although the declaration had some weaknesses, it is applicable to the African context given the continent is not longer in a Pre-colonial form and it is continuous changing, a change quite similar to the western world and everyone should not be held back by culture and traditions of the ancient times. As Tharoor emphasizes that those who freely choose to live by and to be treated according to their traditional cultures are welcome to do so, provided others who wish to be free are not oppressed in the name of a culture they prefer to disavow.
Kur John Garang, Oslo Metropolitan University, This article was first printed as part of my academic work at the university and the language used is purely academic. The Author can be reached at moorgueec@yahoo.com
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