Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi
Quain Professor of Jurisprudence Emeritus,
Faculty of Laws,
University College London
This is a refereed article published on: 6 December 2007
Citation: Twining, W, ‘Human Rights: Southern Voices; Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi’, 2007 (1) Law, Social Justice & Global Development Journal (LGD).
In the context of ‘globalisation,’ Western jurisprudence has largely ignored non-Western viewpoints, interests, and traditions. This article takes a modest step towards de-parochialising our juristic canon by introducing writings about human rights of four ‘Southern’ jurists: Francis Deng (Southern Sudan), Abdullahi An-Nai’im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). All were trained in the common law and have published extensively in English, so their work is readily accessible, but their perspectives show some striking differences. Deng argues that traditional values of the Dinka of the Southern Sudan are basically compatible with the values underlying the international human rights regime. For An-Na’im, a ‘modernist’ interpretation of Islam is mostly reconcilable with international human rights, but acceptance of such ideas depends far more on conversations within Islam than on cross-cultural dialogue of external efforts. Ghai questions claims to universal human rights; however, from his materialist stance and his experience of postcolonial constitution-making, human rights discourse can provide a framework for negotiating settlements in multi-ethnic societies. Baxi argues that as human rights discourse is professionalised or hijacked by powerful groups, it risks losing touch with the suffering and needs of the poor and the oppressed, who are the main authors of human rights.
An-Na’im, Baxi, Deng, Ghai, Human Rights, Pluralism, Southern Jurisprudence, Universalism.
The substance of this contribution is contained in Twining, W (2006) ' Human Rights: Southern Voices - Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi’ Review of Constitutional Studies 11, pp. 203-279 and is published herein by the kind permission of Review of Constitutional Studies.
This is an extended version of the 17th Annual McDonald Lecture, delivered at the Centre for Constitutional Studies, University of Alberta, 31 March 2005. I am grateful to Terry Anderson, Bill Conklin, Marie Dembour, Andrew Halpin, Janna Promislow, Carl Wellman, and participants in seminars at the University of Miami and the University of Sussex for helpful comments and suggestions. I also wish to thank the four subjects of this article for answering questions, and pointing out errors and omissions, while leaving me space to make my own interpretations, for which I am solely responsible.
In Ahdaf Soueif’s novel, The Map of Love, an Egyptian woman, Amal, is expecting an American visitor: ‘Wary and weary in advance: an American woman – a journalist, she had said on the phone. But she said Amal’s brother had told her to call and so Amal agreed to see her. And braced herself: the fundamentalists, the veil, the cold peace, polygamy, women’s status in Islam, female genital mutilation – which would it be?’1
Amal is a cosmopolitan scholar, who moves easily between the worlds of Cairo, New York, and Europe. She is weary of the simplistic repetitious stereotyping of Egypt, Arab culture, and Islam by Westerners. Western normative jurisprudence faces similar charges of a repetitious parochialism about its agenda and about the bearing of other traditions on normative questions.
Western jurispudence has a long tradition of universalism in ethics. Natural law, classical utilitarianism, Kantianism, and modern theories of human rights have all been universalist in tendency. But nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias. How can one seriously claim to be a universalist if one is ethnocentrically unaware of the ideas and values of other belief systems and traditions?
As the discipline of law becomes more cosmopolitan, it needs to be backed by a truly cosmopolitan general jurisprudence.2 My objective here is to make a small contribution to this cause by exploring the work of four non-Western jurists who are from ‘the South’ and who have made substantial contributions to the theory and practice of human rights: Francis Deng (Sudan), Abdullahi An-Na’im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). I shall finish with some remarks on why I have selected these four individuals, who else might have been included, the similarities and contrasts in their perspectives, in what sense they can be claimed to be ‘voices’ from or of the South, and their relationship to some familiar strands in Western liberal democratic theory.
Since my immediate objective is to make the views of these four jurists better known, I shall try to provide a clear and fair exposition of their ideas about human rights, based on a finite number of accessible texts. This is part of the larger enterprise of de-parochialising our own traditions of jurisprudence at a time when we need to take seriously the implications of the complex processes of globalisation for our understanding of law.
Let me begin with a brief overview of the four individuals, each of whom emphasises seemingly different aspects of ‘voice.’ Francis Deng, justifiably, claims to speak for the traditions and culture of his own people, the Ngok Dinka of Kordofan in the Sudan. He argues that traditional Dinka values are basically compatible, in most respects, with the values underlying the Universal Declaration of Human Rights3 and related international conventions and declarations. Abdullahi An-Na’im argues that a ‘modernist’ interpretation of Islam involves ideas that are, for the most part, similarly reconcilable with international human rights ideas, but that acceptance of such ideas (their internalisation within Islamic belief systems) depends far more on conversations and debates within Islam than on cross-cultural dialogue, let alone external attempts at persuasion or imposition. Yash Ghai is skeptical of most claims to universality that are made for human rights; however, adopting a pragmatic materialist stance, he reports that he has found through practical experience of postcolonial constitution making that human rights discourse provides a workable framework for negotiating political and constitutional settlements among politicians and leaders claiming to represent different majority, minority, and ethnic interests in multi-ethnic societies. Such discourse also facilitates popular participation in constitutive processes. Upendra Baxi argues that as human rights discourse becomes commodified, professionalised by technocrats, and sometimes hijacked by powerful groups, it is in grave danger of losing touch with the experience of suffering and the needs of those who should be the main beneficiaries – the poor and the oppressed. They are the main authors of human rights. To take human rights seriously is to take suffering seriously.
All four have been activists as well as theorists, but in different ways. Francis Deng has had a very distinguished career in international diplomacy. Abdullahi An-Na’im has been a human rights activist within the Sudan and several other countries, and a publicist for human rights internationally. Yash Ghai has played a major role in post-independence constitution making and reform, especially in the South Pacific and Kenya. Upendra Baxi has been an influential publicist and campaigner in India and on the international stage, as well as serving as vice-chancellor of two Indian universities. For the last twenty years, he has campaigned and litigated on behalf of the victims of the Bhopal disaster.
Francis Madeng Deng4
God asked man, “Which one shall I give you, black man; there is the cow and the thing called ‘What,’ which of the two would you like?”
The man said, “I do not want ‘What.’”
God said: “But ‘What’ is better than the cow!”
God said, “If you like the cow, you had better taste its milk before you choose it finally.”
The man squeezed some milk into his hand, tasted it, and said, “Let us have the milk and never see ‘What.’”5
What you have said, you Mading, we are very pleased. Things we have told you, you will give them a purpose; you will write them down and that is a big
thing . . . .
If this machine of yours writes and records what a man really says, and really records well, then if what we have said is bad, it will search for our necks; if it is good, then we will say these words have saved our country. Now we have trusted you . . . we trust in you fully. Whatever you think we have missed, whatever you think we should have said that we missed, let it be said that we are the people who said it.6 Francis Mading Deng was born in 1938 near Abyei in Kordofan in the west of the Sudan. His father, Deng Majok, was paramount chief of the Ngok Dinka, the only Nilotic inhabitants in the Northern Sudan. It is commonly said that ‘Abyei is to the Sudan as the Sudan is to Africa,’ a bridge between the African and Arab worlds. Deng Majok was an outstanding tribal leader, a national figure, especially prominent for his bridging role between the Arab north and the Nilotic south. He was also known as the creator of a huge family through marrying more wives than any other man in Dinka history. Francis, one of his senior sons, became both the leading interpreter of Dinka tradition and a committed proponent of human rights, maintaining that they are basically compatible. How could this be?
Francis was the eldest son of Deng Majok’s fourth wife. Although he did not groom any of his sons to succeed him, Deng Majok believed in education. The education of Francis Deng is a story of a remarkable journey through different cultures. It began in Deng Majok’s compound in Abyei and continued in a boarding school for sons of chiefs run on similar lines to a British preparatory school. Francis Deng then proceeded to Khor Taaqqat, a secondary boarding school in the North, where the great majority of the boys were Muslims. He read law at the University of Khartoum, where he was taught in English mainly by expatriate teachers, including myself. The course was largely based on English law, but included an introduction to Shari’a law. Some attempt was made to discuss the role of customary law in the national legal system of the Sudan, but there was not sufficient literature to carry this very far. With encouragement, Deng spent some of his vacations studying customary law by sitting in his father’s court, reading the court records, interviewing chiefs and elders, and starting a collection of recordings of several hundred Dinka songs.7 This was the start of his very extensive explorations of Dinka traditions, culture, and law over many years.
Francis Deng graduated with a good LL.B. in 1962 and obtained a scholarship to pursue postgraduate studies in London, where he stayed for a year, before proceeding to Yale Law School, from which he obtained a doctorate in 1967. Before the age of thirty, he had been exposed to Dinka, Christian, British colonial, Northern Sudanese, Muslim, and both English and American common law ideas. So it is hardly surprising that one of the central concerns of all his writing has been the problem of identity.
On leaving Yale, Francis Deng worked as an officer in the human rights division of the United Nations Secretariat in New York from 1967 to 1972. During this period he met and married Dorothy Ludwig and became part of an American family. They have four sons, who have grown up mainly in Washington, D.C., but who have kept in touch with their Dinka heritage.
In 1972 Deng joined the Sudanese diplomatic service. He served as ambassador to the United States and Scandinavia, becoming Minister of State for Foreign Affairs between 1976 and 1980. From 1980 to 1983, he was Sudan’s ambassador to Canada. Subsequently he has held a number of academic positions, mainly in the United States. He has continued to be involved in public affairs, most notably in efforts to end the civil war in the Sudan and, since 1992, as Representative of the Secretary-General of the United Nations on Internally Displaced Persons, rising to the status of Undersecretary-General. In this capacity he has had enormous influence in bringing the plight of 25 million people in forty countries to public attention, and in persuading governments that this neglected problem is a matter both of sovereign responsibility and legitimate international humanitarian concern.8
Even when holding responsible full-time public positions, Francis Deng has been a prolific writer. His first book, Tradition and Modernization: A Challenge for Law Among the Dinka of the Sudan,9 was based on his doctoral thesis at Yale. Of it, Harold Lasswell, his main supervisor, wrote: ‘Dr Deng has brought to the task of examining his own culture an impressive objectivity of outlook that testifies to his success in acquiring the essential characteristic of a scientific frame of reference.’10 This frame of reference, based on Lasswell and McDougal’s ‘law, science, and policy’ approach, represented a significant departure for Deng:
There was a time when I would have been reticent to speak of values because my earlier legal training made me suspicious of such terms as falling within the realm of metaphysics and therefore irrelevant to hard legal analysis. But then I was fortunate, I would say, to go to Yale Law School, where Myres McDougal and Harold Lasswell attached considerable importance to values. In their jurisprudence of law, science and policy, values were defined in concrete terms, embracing deference values such as power, rectitude, affection and respect, and welfare values like wealth, well-being, skills and enlightenment. Another major principle introduced by the Yale School of Jurisprudence was the concept of human dignity as an overriding goal of community and social processes. Again, human dignity was one of those concepts that I had been conditioned by my earlier legal training to dismiss as metaphysical. The Yale school gave it an empirical meaning by defining it in terms of the broadest shaping and sharing of values.11 For Francis Deng, these concepts resonated with Dinka values as he perceived them and at the same time provide a direct link with universal principles applicable to all societies.
Tradition and Modernization is unusual in another respect. It is one of the few books about law ever to be based quite substantially on songs. Rarer still, the author was qualified by birth to be a poet. This extraordinary feat arose out of necessity: because of the security situation, Deng was unable to return home to do more fieldwork, so he partly made up for this gap in his data by making an extensive collection of songs from fellow Dinkas in the United States and from his earlier recordings and his memory. In time he produced two volumes of translations of Dinka songs and folk tales. His early writings bring out the special role played by song in Dinka social relations in relation to courtship, bridewealth, cattle, disputes, war, religious ceremonies, and celebrations:12 Among the Dinka, songs and dance have a functional role in everyday life. They do not deal with constructed situations; they concern known facts, known people, and defined objectives. But, above all they are skills of splendor in which a Dinka finds total gratification and elevation. The vigor and rhythm with which they stamp the ground, the grace with which they run in war ballets, the height to which they jump, the manner of pride and self-approval with which they bear themselves, and the way in which the high-pitched solo receives the loud unified response of the chorus combine to give the Dinka a euphoria that is hard to describe. As the singing stops, the drums beat even louder, the dance reaches its climax, and every individual, gorged with a feeling of self-fulfillment, begins to chant words of self-exaltation.
I am a gentleman adorned with beads
I dance to the drums and level my feet
The girls of the tribe gather before me
The wealth of the tribe comes to me.13
Francis Deng has produced over twenty books, including two novels. Many of them concern the Dinka or the problems of North–South conflict in the Sudan. Even when writing about broader issues such as human rights, displaced persons, and dispute resolution, he regularly draws on Dinka examples and reaffirms that at the core of his multi-layered identity remains a commitment to central Dinka values. A central concern of his work is to reconcile tensions between tradition and modernity, between Dinka culture and universal standards, and between national unity and diversity in a conflicted Sudan.
The Historical Context
Francis Deng’s writings need to be viewed in the context of the history of the Sudan. At Independence in 1956, the Dinka were one of the largest peoples in Africa. In the 1956 census they were estimated to number nearly 2 million, divided into twenty-five independent groups living a semi-nomadic, semi-pastoral life in settlements dispersed over nearly a million square miles within the Sudan. During the Condominium period they were perceived by outsiders to be strongly religious, immensely proud, exclusive, and resistant to change.14 For many years they fiercely resisted foreign rule, but under the British they also found that the policy of indirect rule was a convenient way of maintaining their heritage and distinct identity. Whether the motives of the British in maintaining the isolation of the Southern Sudan are attributed to a respect for Nilotic culture amounting almost to romance or to a policy of divide and rule, or to a mixture of both, until Independence the Dinka enjoyed the security and exclusiveness resulting from the policy, while resenting being ruled by outsiders, whether British or Northerners.
The Sudan became independent in 1956. During the past half-century, except for a ten-year break, the Dinka have suffered terribly, experiencing repression, massacres, starvation (sometimes deliberately induced), decimation, enslavement, and displacement. The civil war in the Sudan began in 1955. From 1972 to 1983, there was a break following the Addis Ababa Agreement, which gave the Southern Sudan regional autonomy.15 War resumed in 1983 after the military regime of Gafaar Nimeiry instituted a strategy of Islamicisation. The latest peace agreement, in 2005, still holds precariously at the time of writing.16 Over the years, Francis Deng has been involved in attempts to broker a peace as a statesman and diplomat, but above all as a writer.
Here I shall concentrate on Deng’s treatment of universalism and relativism with respect to human rights by focusing on a few of his very extensive writings, especially his biography of his father, the volume Human Rights in Africa, edited jointly with Abdullahi An-Na’im,17 and a series of articles published in The Sudan Democratic Gazette18 and The Journal of International Affairs19 that set out his general position in summary form.
Despite this terrible history of death, suffering, and displacement, Francis Deng emphasises the resilience and vitality of Dinka culture which has formed the basis of their identity. He has documented this culture in rich detail through interviews, folk tales, legends, biographies, cases, and historic events. In his early work he had to rely quite heavily on his own experience, a sparse but generally excellent scholarly literature,20 and his own recordings of Dinka songs. After he returned to the Sudan, he was able to update his knowledge and supplement these sources with extensive recordings of interviews with Dinka chiefs and other informants.
In his scholarly writings about the Dinka, Deng adopted an approach that now might be considered unfashionable in its use of ‘the ethnographic present’ and the rather rigid framework of analysis of Lasswell and McDougal.21 However, Dinka history and culture are also powerfully evoked through Dinka folk tales, songs, oral history, and novels. He identifies the unity of Dinka culture in a changing and tragic situation through a few core concepts and values that form a distinctive Dinka identity.22 His interpretation is in a sense ‘idealised’ in that he focuses on core values of a tradition that were never fully lived up to and, as he makes very clear, have been threatened not only by modernity but by nearly half a century of suffering.23 What follows is a brief outline of his interpretation of these ideas and how they relate to international norms of human rights, democracy, and good governance.
The Dinka were said to be among the most religious of African peoples. They believe in a single God who has similar characteristics to the God of other monotheistic religions, including Christianity and Islam, but they have no concept of heaven or hell. ‘The overriding goal of Dinka society is koc e nohm, a concept of procreational immortality which aims at perpetuating the identity of every individual male. Respect for the dignity of any person is central to this principle.’24 Both men and women are immortalised by procreation. It determines their social status, wealth, and place in history. Immortality maintains the identity of the dead and enables them to continue to participate in social processes in this world and to influence them.25 Two central concepts are cieng and dheng (or dheeng). The concept of cieng sets the standard of good social relations. It has no counterpart in English. As a verb it can mean to treat a person well, to live in harmony, to be generous, hospitable, and kind. A person’s character or behaviour can be evaluated in terms of having good or bad cieng: ‘Cieng places emphasis on such human values as dignity, integrity, honor, and respect for self and others, loyalty and piety, compassion and generosity, and unity and harmony…Good cieng is opposed to coercion and violence, for solidarity, harmony, and mutual cooperation are more fittingly achieved voluntarily and by persuasion.’26 Cieng sums up central values of human relations. Dinka society provides various avenues for developing individual and collective pride through attaining values that demand respect. A person attains the status of dheng by his or her conduct: ‘Among the many positive meanings of dheng are nobility, beauty, handsomeness, elegance, charm, grace, gentleness, hospitality, generosity, good manners, discretion, and kindness.’27 As with virtue, there are many paths to dheng – through ancestry, cattle, sexual prowess, graciousness, generosity, bravery, or wealth in the form of cattle.28 Dinka values are believed to be sanctioned by God and the ancestors. Harold Lasswell commented on the powerful processes of early socialization that created an ‘inner policeman’ which can continue to operate after an individual has moved from his original setting and come into contact with other norms, values, and temptations.29 In traditional society, living up to these values was largely left to individual conscience, social approval and disapproval, and persuasion rather than force. Dinka tradition makes no sharp distinction between law, custom, and morals. All are backed by religious and social pressures and especially by individual conscience:
These moral and spiritual principles are also applied to guide and control the exercise of political and legal authority. Dinka law is not the dictate of the ruler with coercive sanctions. Rather it was an expression of the collective will of the community, inherited from the ancestors, generally respected and observed, sanctioned largely through persuasion, or if need be, spiritual sanctions.30 Despite the martial culture of the Dinka as herders and warriors, killing, even in fair fight, is believed to be spiritually contaminating and dangerous according to ritual practices. Killing by stealth or ambush is considered particularly depraved and requires even more elaborate procedures of redress and rites of atonement. Theft was hardly heard of in traditional society and, when it occurred, was met with degrading sanctions that were severely damaging to one’s social standing. Virtually every wrong threatens the wrongdoer with misfortune and death.31 Dinka norms on killing, marriage, the family, harms, insult, and defamation (including defamation of the dead), social hierarchy, and economic relations are all directly related to the overriding importance of immortality through procreation and the values embodied in the concepts of cieng and dheng. These values integrate the individual and the community. They are illustrated in concrete form by the role of cattle in Dinka society. ‘It is for cattle that we are liked, we the Dinka. The government likes us because we keep cattle. All over the world people look to us because of cattle. And when they say ‘Sudan,’ it is not just because of our color, it is also because of our wealth; and our wealth is cattle.’32 Cattle are wealth, but they signify much more than that. Cattle constitute bridewealth that ensures continuity through procreation; cattle are prepared for special sacrifices to God, the spirits, and ancestors. A great many songs are about oxen or the need for oxen – for marriage, for sacrifice, or just for dheng. Young men exalt themselves and their lineage through identification with their personality ox, a castrated bull of little practical value:
When I rise I sing over my ox,
I am like my forefathers
I rise to be seen by my ancient fathers
I rise to be seen walking with pride
As it was in the distant past
When our clan was born.33
The Dinka lacked any centralized institutions for making or enforcing law, and some anthropologists have maintained that they were an example of an ‘acephalous’ or chiefless society and that ‘chiefs’ were a colonial creation. However, this is misleading. The Dinka did have leaders whom anthropologists have variously referred to as ‘master of the fishing spear’ (Lienhardt) or ‘The Leopard Skin Chief’ (Evans-Pritchard and Paul Howell).34 These titles emphasize the religious nature of traditional leadership which contrasted with British secular conceptions of the role of chiefs. According to Deng, the traditional leader was the embodiment of Dinka values, mediating between God, the ancestors, and the living: ‘Viewed in local terms, these qualities are often associated with ‘the tongue’ and ‘the belly.’ By the tongue is meant the ability to speak soothing and conciliatory words that bring harmony and mutual co-operation to human relations. The belly connotes showing hospitality to visitors, but also generosity to the needy.’35 During the condominium period, chieftainship among the Dinka became more secular and political. Persuasion remained a prime requirement of leadership, but over time authority came to rely more on secular punishments than on religious sanctions. Such punishments as prison and flogging offended Dinka conceptions of dignity and were resented, although over time they came to be accepted to some extent.36 Pressures on traditional chiefs to meet their material obligations sometimes led to accusations of corruption or abuse.37 The move from religious to secular opened the way to criticism of chiefs and even to political opposition.
Francis Deng’s father, Deng Majok, lived through all of these strains between tradition and modernity and was regarded by many as the embodiment of a great Dinka leader. He was widely admired for many qualities, including wisdom, generosity, strong leadership, and progressiveness, and for building good relations with neighbouring Arabs while safeguarding the security and independence of his own people.38 However, he was often criticized for ‘excessive marriage.’ At first sight this provides a rather striking example of a conflict between Dinka tradition and modern ‘universal’ values. But the story is more complex than that.
In his biography of his father, Francis Deng deals frankly and in detail with Deng Majok’s prodigious uxoriousness. Chapter Twelve is significantly entitled ‘The Economics of Polygyny.’ By Dinka tradition there is no limit to the number of wives that a man can marry provided that he can afford them. In Deng Majok’s case, estimates of the total number of wives he acquired during his life vary between 200 and 400. This appears to have been a record in Dinka history and it occasioned continuing controversy. On the one hand, he was clearly fulfilling the imperatives of procreation and immortality. According to his son, he generally treated his wives and offspring generously and fairly, but he maintained control and surface order within the family through the strict discipline of an authoritarian patriarch. He ‘granted equal opportunities for procreation,’39 but there was often ‘turmoil beneath the calm.’40 Within Ngok Dinka society the situation was problematic.
The size of his family was a matter of prestige rather than shame. But marriage was costly and the family was worried about the draining of their wealth; others hinted at corruption, though no formal accusations were ever made. Deng Majok’s defenders maintained that he always acted in accordance with Dinka mores, if not European ones. Nearly all the arguments seem to have centred on issues of power, wealth, and procreation, rather than on sexual morality. His son reports:
In defending his marriages, Deng Majok gave different reasons to different people. To some, especially his family, he might talk of marriage as an investment and a source of economic and social security. To others he might mention the need to broaden the circle of relatives and the relationships by affinity as a strategy of extending political influence. But the reason he stressed most often and which cut across all others was procreation. And, in a curious way, all those who discussed the matter with him now report his arguments with considerable sympathy and nearly always end up agreeing with his point of view, if only in retrospect.
“When his marriages began to be excessive”, said Nyanbol Amor [his second wife], we went and said to him: “Deng, what is this? Cattle should be allowed to remain for some time to increase in number. You now seize a cow a woman uses for making butter and you send it off to marriage; why is that? Aren’t we enough? We do not want you to continue with your marriages!”
He replied: “Are you people fools? Have you no sense of judgment? I am marrying these wives for your own good. These women will have children. And it is these children who will remain with you.”41
It was not only his wives who tried to dissuade him. Sons, elders, fellow chiefs, and ordinary people raised the issue with him. The discussions appear to have been quite frank and open, but Deng Majok never relented. In respect of marriage, Deng Majok was treated as a spendthrift investor in wives, but in other respects he was considered to be a great modernizer. He invested in the education of his sons, but was more reluctant to educate his daughters. He built good relations with his Arab neighbours, he emphasized ideas of due process, and he resorted to modern medicine. During the period of the Condominium, Deng Majok also exactly fitted the British policy of indirect rule:
Deng Majok’s leadership represented a peak in the evolution of tribal authority from the role of spiritual and moral functionary to an autocratic government institution backed by the coercive power of the state. The erosion of the egalitarianism and democracy of traditional society has been counterbalanced by the effectiveness of the new institutions in establishing and consolidating broad-based adherence to the rule of law in the broader framework of the nation-state. Deng Majok and other tribal chiefs in both the North and the South were indispensable in the maintaining of order and security among the masses of the rural population and in the context in which the central government machinery was otherwise remote and costly.42 When Deng writes about reconciling Dinka values with ‘modernity,’43 he is concerned more with the relationship to human rights norms than to values of the colonial (or Condominium) state.
In his early writings Francis Deng did not make much reference to human rights, but he has always emphasized human dignity as a basic value. After completing his doctorate at Yale, he worked for five years as a human rights officer in the UN Secretariat and acquired considerable professional expertise in the area, especially in relation to women’s rights. Since then he has been a firm, quite orthodox, upholder of the international human rights regime and of basic principles of democracy, both of which he considers to be universal. On human rights he emphasizes the United Nations Charter 44and the Universal Declaration of Human Rights,45 especially such general phrases as ‘‘the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.’’46 On democracy he states:
Among the principles of democracy that have gained universal validity are that governments rule in accordance with the will of the people and adhere to the rule of law, separation of powers, and independence of the judiciary, and respect for fundamental rights and civil liberties. These principles should be safeguarded by transparency, freedom of expression (and of the press), access to information and accountability to the public. Given the tendency of Africans to vote according to their ethnic or tribal identities, democracy will have to mean more than electoral votes. In the context of ethnic diversity, devolution of power through decentralisation down to the local level, combined with some methods of ensuring the representation of those who would otherwise be excluded by the weight of electoral votes, would be necessary. In any case, democracy, however defined or practiced, implies accommodation of differences and a special responsibility for the protection of minorities.47
At first sight, these familiar ideas of modern liberal democracy seem a long way from Dinka tradition with its emphasis on immortality – especially through the male line – polygyny, a non-monetary economy, divine chieftainship, and cattle. Nor does this fit with his father’s autocratic style. How could a UN human rights officer working on international women’s rights continue to respect and honour his father, a patriarch who had over 200 wives? Are Dinka concepts of cieng and dheng quite the same as the meaning of ‘dignity’ in the UN Declaration on Human Rights? How can one reconcile the immortality of ancestors with so earthbound and secular an ideology as modern human rights? Is Dinka tradition really democratic?
Francis Deng adopts an elaborate strategy to confront these issues. The following is just a brief summary.
First, Deng is not a cultural relativist.48 Following Abdullahi An-Na’im, he emphasizes that for institutions and particular norms to be accepted as legitimate and to be effective they must be debated, interpreted, and applied within the concepts and internal logic of local cultures. However, this does not preclude using universal standards as a basis for judging particular features of a culture or tradition. Relativism that rejects all external standards is unacceptable, but relativism in the sense of taking very seriously the beliefs and values of a given culture complements universalism. In respect of the details of institutional design and specific prescriptions, culture is an essential part of legitimating any social change.49 In short, a cultural approach to human rights and democracy involves seeing tradition as supplementing abstract values and principles. Cieng and dheng are conceptions that concretize, localize, and enrich abstract notions of human dignity.
Second, human rights and the principles of democracy are universal, but only at a very abstract level. At that level, Dinka ideals that emphasize respect for persons, dignity, and harmony are fundamentally compatible; indeed, Deng goes so far as to say that the Dinka ‘clearly had notions of human rights that formed an integral part of their value system.’50 Furthermore, although the principles of democracy are universal, ‘democracy should be home grown to be sustainable.’51 Independence constitutions in Africa tended to fail, not because of their ideals, but because they were essentially imposed from above and in a form that was not the result of a genuine local constitutive process. The ideals, he claims, were already part of African tradition: ‘In traditional Africa, rulers governed with the consent of the people who participated broadly in their own self-administration; were free to express their will; and held their leaders to high standards of transparency and accountability. In that sense, indigenous societies were more democratic than most modern-states in Africa.’52 Third, the Dinka are changing. They have become more open to learning from the outside world and some are less confident about the superiority of their own culture. There is even talk of giving up the Cow for the pursuit of ‘What.’ After over forty years of conflict and suffering they yearn for peace. How far these terrible years and the dislocation of so many have weakened the grip of Dinka culture and its ‘internal policeman’ is uncertain. But for many the core values embodied in cieng and dheng have sustained their identity. After conducting a series of interviews with chiefs and elders in 1999, Francis Deng concluded that the civil war had been both a destabilizing and a radicalizing factor, ironically increasing motivation for development, but in ways that are compatible with basic elements of their cultural integrity.53 For example, in an integrated rural development project, the Dinka strongly resisted any suggestion that cattle could be used as draft animals, but they were prepared to sell them for cash, or use them in ways ‘that are compatible with the dignity of the animals as they see it.’54 Fourth, Deng acknowledges that, judged by the standards of human rights norms, some aspects of Dinka culture are open to criticism. In 1990 he summarized the main points as follows:
There are, however, severe constraints on the Dinka cultural system of values in terms of objective universal human rights standards. One set of negative effects derives from the inequities inherent in the logic of the lineage system and its stratification on the basis of descent, age, and sex. Another set of negative characteristics lies in the conservative nature of the system and its resistance to change or cross-cultural assimilation. And yet another shortcoming of the system lies in the fact that its human rights values weaken as one goes away from the structural center of Dinka community.55
Women in Dinka Society
Perhaps the biggest test of Deng’s argument about the compatibility of Dinka tradition with human rights is the subject of the status and treatment of women, as it is for many of the world’s cultures, traditions, and religions. Deng’s own accounts of Dinka cosmology and of his father’s uxoriousness, although clearly an extreme case, suggest a large gulf between central aspects of Dinka tradition and the norms and standards embodied in such instruments as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).56 Deng acknowledges this. He accepts that polygamy is inconsistent with equal respect and that Dinka women have a subordinate role in Dinka cosmology and tradition. He himself is committed to UN values on the status of women. He is monogamous, and the Dinka heroes in his two novels are monogamous – indeed, one resists pressures to take additional wives.57 He can point out, in mitigation, that the central concept of thek applies to women, as well as to men and clan divinities.Thek includes, but is broader than, the English concepts of respect and deference. As Lienhardt points out: ‘Thek . . . is a compound of behaviour which shows unagressiveness and deference to its object, and of behaviour which shows esteem for it.’58
Francis Deng is quite explicit about the position of women. After acknowledging the inequities of the social structure in the passage quoted above, he continues:
The problem lies not only in the injustices of the system but also in the fact that those who are less favoured by it tend to react to the inequities, thereby creating paradoxes in the social system. For instance, although women are the least favored by the ancestral values, society depends on them not only as sources of income through the custom of marriage with cattle wealth but also as mothers who perform the educational role of inculcating ancestral values in their children at an early age. Yet women have no legitimate voice in the open channels of decisionmaking and can participate only through indirect influence on their sons and husbands. But because of the close association between mothers and children and the considerable influence wives have over their husbands, women are regarded as most influential in the affairs of men. Nevertheless, because of the inequities of polygyny, women are known for jealousies, divisiveness, and even disloyalty to clan ideals. Their influence, especially on the children, must therefore be curtailed.
The Dinka reconcile these conflicting realities by recognizing the love and affection for the mother as functions of the heart, while those feelings for the father are functions of the mind. . . .
As a result of these contradictions, the position of women among the Dinka is a complex one in which deprivations and inequities are compensated by devices that ensure a degree of conformity and stability, despite ambivalences.59 This is to state a problem rather than to resolve it. The status and treatment of women in Dinka tradition are closely bound up with Dinka cosmology, with its emphasis on procreation and veneration of male ancestors, a pastoral economy, its practices and attitudes to cattle, and many other matters. This raises a host of complex questions about how far Dinkas living in rural communities could retain their strong sense of cultural identity over time if they were to adjust to the standards of the outside world in respect of monogamy, the education of women, participation in decision making, non-discrimination, and other requirements of even minimalist versions of feminism. How far can the specifics of traditional Dinka values and beliefs justify a margin of appreciation that modifies abstract principles of women’s equality? And what of the situation of Dinka women who live outside traditional society? Francis Deng does not attempt to address these issues in a sustained way. In the light of the tragic history of the Dinka over the last thirty years, they may not even be the most pressing questions.
Francis Deng has been a prolific writer on a wide range of topics, and he has addressed a variety of audiences. For present purposes, his most relevant writings can be treated as falling into three groups: First, there is an extensive collection of books and essays that describe, evoke, and explain Dinka culture, with tradition and modernization as a central theme. Most of these writings are scholarly works addressed to mainly Western audiences and published in the 1970s. A second, more varied, group deals with political and social relations between the North and South Sudan. In some instances, the explicit aim is to encourage a more sympathetic understanding of Southern culture and aspirations by Northern Muslims. In these, identity is a central theme. For over thirty years, Deng has supported a unified but pluralistic Sudan in which a strong national identity is forged through an open recognition of cultural diversity.60 Third, since about 1990 and partly influenced by Abdullahi An-Na’im, he has addressed issues concerning the compatibility of human rights with African traditions. In this context he has adopted an explicitly cross-cultural perspective. These writings are less extensive than the other groups and are addressed to rather varied audiences.61 In the present context, the first group of writings is probably the most significant. Francis Deng’s account of Dinka traditions may now seem somewhat idealized, even outdated, but he has provided a rich body of authentic material that is open to interpretation from other perspectives. Above all, he has given Dinka tradition and values a voice in the outside world. He has also illustrated in a vivid and specific way the more general theme of the complex relationship between long-established traditional values and modern conceptions of human rights.