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The Legal Protection of Human Rights in Africa: How to Do More with Less Abdullahi A. An-Na'im It may sound heretical for me as a lawyer to suggest that African societies may actually "do more" for the implementation of human rights "with less" reliance on the legal protection of these rights.1 My basic argument for this proposition is premised on a dilemma: the importance of legal protection of human rights, on the one hand, and the inability (not simply unwillingness, which is also usually true) of the postcolonial African state to provide adequate legal protection as required by the modern human rights paradigm,2 on the other. This dilemma leads me to ask: Since the postcolonial state in Africa is unable to provide the necessary legal protection of human rights, should efforts to realize these rights therefore focus on nonlegal strategies of implementation? Indeed, will legal protection ever be appropriate for I am grateful to Professor Rosalind Hackett of the University of Tennessee, Knoxville, for her very valuable critical comments and useful suggestions on the first draft of this chapter. 1. As explained in section II, this chapter is based on studies done in fourteen African countries: Botswana, Egypt, Ethiopia, Ghana, Kenya, Morocco, Mozambique, Nigeria, Rwanda, Senegal, South Africa, Sudan, Uganda, and Zambia. Accordingly, I am not claiming that my analysis here applies to every African country or society, though my basic thesis can probably be substantiated with reference to most of them. 2. By human rights paradigm I mean the notion that because certain standards of human rights are binding on states as a matter of international law, protection and implementation is a matter of legitimate international concern, not left exclusively to the domestic jurisdiction of individual states. The binding nature of international human rights norms and an evaluation of the efficacy of international mechanisms for their implementation are not within the ambit of this chapter. 89 HUMAN RIGHTS the type and degree of human rights violations experienced by the peoples of Africa today? In exploring these questions I do not mean to suggest that legal protection of human rights should be abandoned. On the contrary, by the phrase lido more with less" I mean that African states and human rights advocates should keep trying to achieve the maximum possible degree of legal protection with the capacity and resources available to them, as well as seek to realize more implementation of human rights through other strategies. In this chapter, the term implementation refers to a proactive deployment of a variety of measures and policies to achieve the actual realization of human rights, and the term protection signifies the application of legal enforcement methods in response to specific violations of human rights norms in individual cases. While exploring both approaches, I will argue that implementation is more appropriate in most African countries. That is, I am emphasizing the need to address the structural, cultural, and other root causes of violations in order to implement human rights in a systematic and comprehensive manner, instead of seeking redress for violations on a case-bycase basis. But since legal protection of human rights, in the broader, more inclusive, and accessible sense discussed below, should be part of this emphasis on implementation strategies, what I am suggesting in this chapter may not be so heretical after all. To begin with a brief explanation of my thesis here, I first note that it is difficult to generalize about the causes and consequences of the decolonization of Africa in the present limited space except to emphasize that there are certain associations between specific global phenomena of the period after World War 11/ on the one hand, and the untenableness of direct colonial rule, on the other) For my purposes here, I suggest that, in conceding to decolonization, the colonial powers were simply adapting to new trends in global economic and security relations in ways that were more consistent with the internal conditions within those powers than the retention of direct control over their African colonies. This is not to say that human rights were irrelevant even from the perspective of the colonial powers themselves. Rather, it is only to note that human rights were cited by European powers in conceding to the independence of the African colonies, but those con3 . Crawford Young, The African Colonial State in Comparative Perspective (New Haven: Yale University Press, 1994), 182-91. See generally John D. Hargreaves, Decolonization in Africa, 2d ed. (New York: Longman, 1996). [3.15...

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