The universality of human rights emerged during the 20th century with the UN Declaration of Human rights on the belief that the basic values and principles underlying the concept of human rights are of a universal nature. These values and principles included the concept of individual liberty and freedoms, the belief in democracy and political rights, the acknowledgement of social and economic right. Prior to these the idea of human rights has been restricted to class of individuals depending on status e.g. individual rights for white male in America.
Currently there have been various debates both from scholars and government that human rights are not universal but that cultural diversity influences what obtains as human rights in non-western states. They argue that human rights put the individual above the community which goes against the communitarian values. My argument and examples will be pulled from the African context.
Are Human Rights a Western concept?
This argument takes its basis on the fact that human rights are individualist and was imposed on non-western states as a condition for independence. It also that third world countries especially sub-Saharan Africa were not yet independent and not represented in the United Nations.
Taken from the sub-Saharan African argument of non representation, this is almost a moot argument considering the fact that they have subsequently in future and present instruments confirmed and affirmed the universal declaration of human rights. Take for example the African Declaration for peoples and human rights, the preamble acknowledges drawing from universal declaration. The charter itself takes pride in blending universalism and cultural relativism at least in theory. The African Union constitutive Act and other instruments enacted all makes reference to affirming universal declaration of human rights. It is important to point out that the African Charter was not an imposition from the West nor was the AU Constitutive Act. These were documents purposely drafted and supervised by African leaders most of them dictators at the time.
The other argument especially with the introduction of duties in African Charter was the curb the far reaching effect of individualism. This takes from the concept that the individual is been placed above the community. Human rights do not place the individual above the community but sets limits of the coercive powers. It is true that the idea of human rights first originated from the west but so did other things like technology and industrialization. The non-western states have not raised any arguments rejecting technology transfer; in fact they push for it and claim it as their right to development.
So what is the actual problem? Does human rights as individual rights affect the cultural values and existence fro example in Africa. On a factual basis the African values has been deep into communal living, the individual been part and parcel of the community. So yes human rights as exercise by individual do have an impact on cultural values and communal leaving. For example in Africa the decision to marry is not that of the girl but that of the family and clan, sometimes the community at large depending on the status of the family. Individual exercise of free choice in this respect will be seen as a flagrant disrespect for elders and family. To claim such a right would affect bonds established in family and society. Another example is refusal to marry a choice of the family, say in Northern Nigeria a girl from the Sultan’s family no matter how educated cannot marry below her status and cannot marry outside her religion.
One can also say that claiming right goes against the reconciliatory norms of African Society. On reflection claiming rights can not be held responsible. The current trend of conflict and violations such as ethnic cleansing, rape has not yielded to such reconciliations. This is because these leave no one accountable for such grave violations, resulting in impunity. In such circumstances rights need to be claimed and boundaries set.
On the other hand Universal Human rights in the relationship between the individual and state can not be in conflict with cultural values and norms. I am looking at the present day African society and state. The State is mostly a political structure and cannot invoke cultural or communitarian values in instances of torture or denying citizens right to participate in government. There is also no communal justification to arbitrary detention of anyone. States only raise these arguments to avoid been monitored and held accountable for there actions. The communal values is one based on sharing, these can not in anyway be in conflict with freedom of information or expression.
Do cultural values and norm conflict with Universal Human rights?
There are various cultural practices that violate human rights, these alone if prohibited does not take away from communal leaving. For example in Ghana and Togo the traditional practice of Trokosi is a gross violation of rights of a child and women. Trokosi is the pledging of girls, sometimes from infancy as payments for crimes committed by male members of the family. The girls serve traditional priest, work on their farms and bear their children in a slave like manner. This takes away freedom of choice; she is in slavery and made to pay for another crime. In such circumstances that community needs to be educated to use the court system and get justice for whatever offence or the adequate compensation. The State also needs to take legislative measures of prohibiting such practices.
Another example in the Almanjiri practice in Northern Nigeria, this is the process of giving up children as young as 4years old to the Iman or spiritual leader, they are taught the Koran, and made to beg for alms in the street. They carry bowls and beg for food, sometimes eating leftovers from people’s plate at restaurants. This practice takes away the essence of childhood, is a form of slavery and against the dignity of the human person. In such situations there are both religious and cultural conflicts at play. This is usually a volatile area and one needs to tread cautiously but there needs to be a compromise, one that will ensure removing the children from the streets, having the get both the forms of education (religious and western).
There is also the cultural domination and subordination of women; this would be seen as key issues in rejection of universal human rights. It was on this basis that Suadi Arabi absented from the UN Declaration because equality in marriage was seen as against the Islamic religion. This is similar values held by African countries, the women have no say and the man is head. This perpetuates violence against women, denial of inheritance rights and so on. In some part of Igbo tribe in Nigeria, women are made to drink the water used to wash their husband corpse to prove their innocence as regards cause of death.
All the cultural values enumerated above are not justification for rejection of universal human right. The issue is that these in facts play no active roles in deciding what States adopt as their cultural relativism ideology. Cultural violations of human rights often do not lead to gross or mass violations of human rights such as genocide and mass murders. It can be tackled with gradual and cautious measures. It will in no way detract from the cultural heritage of the people when completely abolished.
State stance on Universalism
The particular stance adopted by States on universalism is more a war of ideologies and philosophies. The ideology postulated by States on cultural relativism is geared towards countering Western philosophy of rights or Western cultural model. Universal Declaration of Human rights was not based on any particular ideology but on comprise and practice. It takes its basis on the dignity of the human person, that rights are inherent. This means that there are certain fundamental rights that should not be subject to been violated by any government. Both western and non-western ideologies agree on the dignity of human person. No arguments should therefore emanate as regards to genocide, rape, torture, arbitrary detention, right to participate in government. Equality and limitations on government powers or interference with the individual, these are fundamentally applicable to all human and therefore universal.
Abusive governments do not have any shield to hide behind for human rights violation and in failing in their obligations to enforce human rights horizontally.
Another issue is while States make arguments for socio-economic rights and rights to development been relegated to the background, they also do not take any positive measures to enforce social rights. In Nigeria for example, the government is filled with corrupt officials who squander the nation’s resources. So what stops them from enforcing these rights? This goes to prove that States are really not interested in respecting or fulfilling human rights but rather are seeking for legitimate excuses.
In conclusion, there are points in cultural practices where conflict may exist between human rights and cultural values. In some instances there needs to be positive actions to eradicate such violations while in some there needs to cohesion and reduction in claims to build the bonds of community. The cultural values on their however does not form the thrust of the universalism debate. The debate is more focused on States and respect for human rights and individual freedom.
According to Prof. Osaitynski, in restoring the universality of human rights we should disconnect two ideas, the universality of human rights from universality of the philosophy of human rights.
For me, I would suggest a more practical approach where the ideologies should not be formulated by states alone. The voice of the people, the civil society within these non-western states should be added to the debate. The philosophies and ideologies are a coat that should be shed off both by west and non-west. No one will agree to been tortured as part of his cultural heritage.
i Most of my ideas derived from Wiktor Osiatynski: The Universality of human rights In Individual and Human Rights Central European University Reader 2008 page 187.