As South Africa prepares to commemorate Human Rights Day on 21 March, Toyin Falola, Extraordinary Professor of Human Rights at the University of the Free State, reflects on some of the misgivings and misconceptions surrounding human rights in Africa and their link to transformation.
Although it might seem surprising to some, there are still parts of the global populace who pose strange questions about Africa's relationship with human rights. They ask: "What do Africa, human rights and transformation have to do with one another?", "Are human rights instruments for transformation in Africa, neo-colonial impositions, or the last refuge of the privileged?" and "Is transformation a desirable goal for Africa, or a red herring to make us forget about the real work, decolonisation?"
On 16 March 2021, I was on a panel hosted by the University of the Free State’s Department of Public Law and the Free State Centre for Human Rights with Dhaya Pillay, a South African High Court judge; Johan Froneman, a retired judge of South Africa's Constitutional Court; and Karin van Marle, a professor of jurisprudence, where we discussed the above questions.
Human rights and transformation have one thing in common across Africa or among any group of people, anywhere in the world, regardless of factors like race, gender, age or religion: humanity! Africans are humans, and it is already established that humans have rights, many of which are considered inalienable. The Universal Declaration of Human Rights (UDHR) promulgated in 1948 that all human beings are free and equal, irrespective of their colour, creed or religion. Thus, human rights are vital to Africa, just like they are to the rest of the world. The confusion, however, perhaps lies in the fact that the concept of human rights was promulgated by the erstwhile colonial powers, thereby leading many to subscribe to the belief that it is linked to colonialism, or at least to core Western values. Indeed, France's President Emmanuel Macron, at the 73rd session of the General Assembly in 2018, lamented the disputing of the universalism of human rights as worrisome. This association of human rights with colonial masters and, therefore, colonialism, as one of its vestiges, is primarily responsible for some of the aforementioned questions.
To begin with, it is worth noting that only three of the 54 now-existing African countries entered the UDHR charter signed in 1948. Others joined upon attainment of independence. According to the UDHR, “Human rights is the foundation of freedom, justice and peace in the world", and "Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind". The UDHR's first article reads thus: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." The article completely eliminates prejudice and discriminations of any kind, including gender, race, sex, ethnicity, religion, country, culture, age, colour, profession, etc. In short, human rights is about the equality of all men and their freedom to life, properties, association, movements, expressions, etc. Given that colonialism is about the denial of freedom to a particular country, this begs the question of how human rights can be regarded as colonial impositions. One of the questions to be asked is how exactly do human rights benefit the Western/colonial powers over Africa?
The African Union, of which all African countries are signatories, has also enacted its own human rights instrument, known as The African Charter on Human and Peoples' Rights. The goal of the charter is to protect the inalienable rights of Africans. Similarly, the Economic Community of West African States (ECOWAS) has a Court of Justice where individual member states can report cases of human rights abuses. The ruling of the ECOWAS Court of Justice is binding on all member states. The above serves to justify that it cannot be a colonial imposition when African states themselves willingly agree to further strengthen the provisions of human rights with more charters and ways of implementation, which the UDHR ‘lacks.’
Human rights instruments are transformational because anything that protects one human from the vices of another also preserves peace and justice in the society. The absence of a guarantee of rights means an individual could hit the streets of Washington, D.C. with a Magnum or Beretta, shoot everyone and return to his or her own base a free person. It means survival will only be guaranteed to who is eviler and has the means to stay alive – the rule of force. After all, where there is no law, there is no sin. And where there is no sin, punishment does not exist. The described situation only regularises chaos, disorder and anarchy. It sustains a system maintained by the survival of the fittest.
Origin of human rights
Moreover, human rights are not new to Africa and cannot be said to be a Western concept, let alone a colonial imposition. In pre-colonial Africa, many of these modern rights were exercised, although not pronounced, spelled out or documented. The one significant difference between then and now is that then, there were those (royal families, for instance) who were regarded above the law; however, now the law is believed to be above everyone else. Thus, no one, not even monarchs/presidents, can willfully take a life as they deem fit. While the arbitrary taking of life, properties, etc., was not uncommon even then, they were often regarded as acts of tyranny. Similarly, despite the pronouncement of human rights in the present day, there are still acts of tyranny comitted by leaders that are similar to or worse than the pre-colonial period. For instance, the Buhari government in Nigeria, or the erstwhile Mugabe administration in Zimbabwe, are infinitesimal examples of where the guarantees in the Constitution and law do not totally ensure citizens’ safety. By implication, it can be said that the UDHR and other Western-introduced principles on human rights are hitherto existent fundamentals and practised norms in Africa and predate the colonial era. You do not need a teacher to know that taking the life of another is wrong or an injustice to the victim. All you need to be is a good person. This is why despite the existent of these charters, laws, judicial systems and the police force, crimes continue to be committed.
Human rights are crucial to resolving social conflicts. The big advantage and strength of the human rights paradigm lie in the values espoused by its norms, which are, by nature, transformative. These values, inherent in human rights, are used by legal practitioners, human rights advocates and dispute resolution practitioners to resolve conflicts, thereby bringing the transformational effects of law, justice and order to the society. This is particularly the case when the state actors desire complete resolution to ensuing conflicts. The desire is crucial to the transformation of a lawless society from one that disregards law and order to one where peace reigns supreme, which is something lacking in many African countries, especially Nigeria. Indeed, reverence for human rights is undoubtedly transformational.
Furthermore, to see human rights as the last refuge of the privileged is quite paradoxical in practical terms. Put differently, what human rights aim to achieve is the freedom/protection of the common man and the less privileged from the oppressive show of power and force of the privileged ones. Thus, it cannot be the last refuge of the privileged; it is the direct opposite. It is the privileged who have the power to violate the rights of the less privileged as if it were nothing. Thus, human rights protect the weak and less privileged from the strong, privileged and powerful in the society.
Transformation and decolonisation
Another question that I find rather peculiar is about perception – "Is transformation a desirable goal for Africa, or a red herring to make us forget about the real work, decolonisation?" Africa is home to some of the worst cases of human rights abuses, with the rise of dictators in several parts of the continent. I can cite scores of nations all over Africa, including South Africa, with records of culpable human rights violations. For example, Nigeria, my homeland, recently intimidated its people and stifled them from protesting the unjust killings of youth. In return, the government deployed the armed forces against its unarmed citizens, and opened fire. If such a society does not need transformation, which society does? Unjust and extrajudicial killings continue in many parts of Africa – Angola, Cameroon, Nigeria, Algeria, Morocco, Somali, Sudan, the Congo, etc. In fact, unjust acts are probably a reality in every part of the continent. Thus, transformation is a desirable goal for Africa.
The pursuit of Africa's transformation from the path of injustice and utter disregard for the rights of its citizens, which it seeks to protect, perfectly aligns with the issue of decolonisation. They both embrace the concept of freedom, justice, self-determination, fairness, humanity, and so on. In fact, they are intertwined. The pursuit of decolonisation hinges on the freedom from foreign powers, while the protection and preservation of Africans' rights hinge on freedom from both international and local abusers such as security operatives, the government and the powerful elite.
Strict adherence, preservations and protection of the dictates of human rights will result in an enabling environment that allows for peace and promotes nation-building amidst peacebuilding, especially in situations where these dictates are strictly enforced. The violation of human rights of people based on their religion, ethnicity, gender, age, and so on, ensures that violence thrives. And where there is violence, there can be no development. This perfectly sums up the African continent, as it does the Middle East. The ongoing turmoil in these regions are inhibitors to peace, and where there is violence, especially in the face of human rights abuses, it is difficult for citizens to thrive and for the public image of the country to be anything but negative. Based on the fundamental principles of respect for human rights, peaceful conflict resolutions will ensure peace and the birth of an egalitarian and transformational society where everyone is willing to contribute.
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA.
(Main image: A Nigerian man based in South Africa holds a poster reading "#EndSARSNow" during a protest outside their embassy in Pretoria on 21 October 2020 in solidarity with Nigerian youth who are demanding an end to police brutality in the form of The Nigerian Police Force Unit, Special Anti-Robbery Squad (SARS). – Phill Magakoe/AFP via Getty Images)