Introduction
The discourse surrounding cultural relativism and universalism in the context of human rights is a contentious and thought-provoking subject which is not just an academically discussed issue, but also repeatedly gains media attention in various circumstances.
One very good example of this was the past Football World Cup in Qatar that heated the minds of many human rights activists around the globe: Qatar’s successful bid to host this prestigious sporting event has ignited intense scrutiny over its human rights practices, prompting debates on the application of universal human rights standards versus respecting cultural norms and traditions. The subsequent intense political and media discussions clearly revealed the different approaches and interpretations of the various human rights concepts. In this specific case, one could particularly observe the different argumentation patterns between the West – above all the Western European countries – on the one hand and host country Qatar on the other hand. The first, sharply condemned the human rights violations related to the World Cup, such as the problematic local working conditions or the lack of protection of women’s rights, arguing with the universality of human rights. The latter responded those accusations by relatively referring to its cultural traditions and rights as a justification.
The following essay will take up and deepen this tension between supporters of the universalism of human rights and cultural relativists by focusing in particular on the relevant African discourse.
The issue of universality of human rights from an African perspective is thereby a decisive preliminary question regarding the actual realization and special protection of human rights in Africa.
Major arguments and trends in the Africanist discourse
With regard to the postulate of the universality of human rights, many African authors increasingly questioned the focus on the individual that traditionally characterizes the human rights discourse in the West: Both highlighting the cultural relativity of specific “African values” in the conception and interpretation of human rights and accentuating their social role for the society have been central to this trend.[1] Those – culturally relativistic – authors argued that the contemporary concept of human rights is a modern development having its roots in the UDHR[2] and is thus alien to “traditional”[3] societies in Africa which historically always focused on a communal rather than an individualistic human rights approach.[4]
Thus, started quite “value-based” and thereby culturally relativistic, the Africanist discussion in the 1980s became more and more versatile: Some authors mentioned the fact that there is very little academic literature approaching the idea of human rights from an African perspective and concluded that one can hardly talk of any specific African legal rather than an ethnic philosophy of human rights.[5] Others went even further by stating that the much-vaunted communal concept of human rights never existed in traditional African communities in the ways that it has been presented.[6]
Today, the Africanist discourse can be divided into two broad schools:[7] The first, being the less radical approach, is ideologically closer to the dominant universalist schools of the West by recognizing the universality of a basic core of human rights while at the same time arguing the validity of a uniquely African concept of human rights. The second school is a more radical opposition to the universalist approach and seeks to fundamentally challenge the “Western”[8] State-Individual thinking by highlighting the collectivist rather than individualistic nature of the concept of rights and duties in Africa.[9]
The ambiguity of the discourse is also mirrored in the ACHPR [10]: On the one hand it breathes a quite individualistic spirit, by directly focusing on inividual non-discrimination rights in article 2 and promoting classical individualistic civil and political rights in articles 3 to 14.[11] On the other hand it also reflects the unique human rights situation in Africa which has emanated from African history, tradition, values, and the eradication of colonialism. In this respect, articles 27-29 exemplarily incorporate duties of the individual towards his family, the society, the state, and the international community.[12]
By making a critical comparison of both approaches, it is important to mention that societies in modern Africa have changed significantly over the last decades especially through globalization and colonization, just like other societies around the world. Therefore, it would not be differentiated enough to simplify African communities as being all homogenously traditional, forbidding any individualistic human rights approaches. Furthermore, the radical approach opens the possibility for governments and states to abusively divert attention from their own human rights violations and political grievances under the guise and justification of cultural relativism.[13]
While arguments of the second school, thus, are to be treated critically, especially because of their potential for political instrumentalization and abuse of human rights in the name of “African traditions”, the second approach is more convincing by leaving the door open to a concept of human rights founded on the basic universal human rights standards and fostering the unique African cultural experience. This culturally inclusive and at the same time practical approach was once very aptly described by one of the Africanist authors as an understanding of human rights embracing and enriched by the specific “African cultural fingerprint”.[14]
Less than further hardening the fronts between the opponents, however, the debate should lead us to see that both sides provide important aspects: To increase its legitimacy, the emerging universal human rights system must be able to draw on the cultural specificities of each society. In one culture, the individual may be revered as the primary bearer of rights, while in another, the rights of the individual must be more closely aligned with those of the community. Underlying both these views, however, must be a recognition of the inherent worth of the individual within the society. Since different people in different parts of the world assert and uphold different human rights claims, the question of the nature of human rights ultimately depends on the particular circumstances of each society.
Conclusion
In conclusion, an Afrocentric conception of human rights emphasizing the African Cultural Fingerprint is a reasonable worldview. However, this only applies as long as cultural differences are not instrumentalized as an excuse for oppression, arbitrary rule, and despotism. Provided that this principle is preserved, human rights regionalism can even build bridges between different legal civilizations by revealing common universal denominators.[15]
At the same time, it will always remain important to find a balance between the need for unity in international law and the cultural diversity of different legal communities. Thereby, an approach of legal pluralism which does not see universalism and relativity as pure opponents could be a sensible solution.
It is hoped that greater cross-cultural understanding will shed light on a common core of universally acceptable rights and values.
In this respect, it is significant to note that the debate can also be misleading:[16] It is useful in so far as it sharpens one’s mind for the different approaches of human rights within the culturally versatile and far-reaching discussion. However, it also bears the risk that fronts on both sides will continue to harden which would be contrary to the preferred approach of legal pluralism.
Coming back to the special protection of human rights in Africa, a cross-cultural understanding of universal but pluralistic human rights, sensible to the unique African cultural fingerprint is the philosophical prerequisite for the gradual realization and enforcement of human rights. Regarding the practical implementation and enforcement of those rights, the signing of the most important international human rights documents by almost all African states and – even more important – the implementation of the African Court on Human and Peoples’ Rights in 2004 have already laid the cornerstone for both their regional realization and a greater African influence on the global interpretation and further development of universal human rights.
[1] Cf. B. Ibhawoh, Cultural Relativism und Human Rights: Reconsidering the African Discourse, Netherlands Quarterly of Human Rights, Vol. 19/1, 2001, pp. 43 ff. (p. 49).
[2] Universal Declaration of Human Rights, entered into force on 11 December 1948.
[3] The term is in a sense problematic because it is often unclear what exactly it is meant to express. Here, it should be understood as a description of the pre-colonial, communal stages of agrarian Africa, based on certain customs and tribal traditions.
[4] Cf. B. Ibhawoh (Fn. 1), p. 50; M. W. Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Rights and Duties, Virginia Journal of International Law, Vol. 35, No. 2, 1995, pp. 341 ff.
[5] Cf. J. Cobbah, African Values in the Human Rights Debate: An African Perspective, Human Rights Quarterly, Vol. 9, No. 3, 1987, pp. 309 f. (p. 309); see also I. G. Shivij, The Concept of Human Rights in Africa, Harare, 1989.
[6] Cf. E. A. El-Obaid and K. Appiagyei-Atua, Human Rights in Africa: A New Perspective on Linking the Past to the Present, McGill Law Journal, Vol. 41, 1996, pp. 819 ff., arguing that traditionally in Africa there has always been a balance between individual communal rights.
[7] Proposal of classification by B. Ibhawoh (Fn. 1), p. 52.
[8] The underlying assumption that an individualistic approach as the foundation and starting point of human rights is historically reserved for the West alone is already very questionable. The philosophy of the assertion and protection of human dignity and the basic of the intrinsic worth of the individual is rather an eternal and universal phenomenon that is as applicable to Western traditions as it is to African and other non-Western traditions.
[9] Cf. O. M. Ejidike, Human Rights in the Cultural Traditions and Social Practices of the Igbo of South-Eastern Nigeria, Journal of African Law, Vol. 43, No. 1, 1999, pp. 71 ff. (inter alia).
[10] African (Banjul Charter) on Human and Peoples Rights, adopted on 27 June 1981, entered into force on 21 October 1986.
[11] The individualistic thrust of the ACHPR is thus particularly evident in the style of its wording, phrasing almost every of the first articles with the words “Every individual shall…”.
[12] Cf. article 27-29 of the ACHPR.
[13] Cf. J. Donnelly, Cultural Relativism and Universal Human Rights, Human Rights Quarterly, Vol. 6, No. 4, 1984, pp. 400 ff. (p. 411), citing several examples of African rulers who have employed appeals to traditional practices as a justification for arbitrary rule.
[14] M. W. Mutua (Fn. 4), p. 341.
[15] M. Shongwe, Cultural and Religious Relativism as Opposition to the Aims of International Human Rights Law: Revisiting the Universalism vs. Regionalism debate, 2016, p. 18.
[16] See also B. Ibhawoh (Fn. 1), p. 61.
