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Human Rights Quarterly 22.3 (2000) 838-860
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Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State
Bonny Ibhawoh *
We must go back to listening. More thought and effort must be given to enriching the human rights discourse by explicit reference to other non-Western religions and cultural traditions. By tracing the linkages between constitutional values on the one hand and the concepts, ideas, and institutions which are central to [various] traditions, the base of support for fundamental rights can be expanded and the claim to universality vindicated.
Mary Robinson, UN High Commissioner for Human Rights,
Human Rights at the Dawn of the 21st Century 1
The polarized debate over the universality or cultural relativity of human rights seems to have given way in recent years to a broad consensus that there is indeed a set of core human rights to which all humanity aspires. The discourse has gradually moved away from whether contemporary human rights are truly universal and therefore cross-culturally applicable to whether they are, as cultural relativists argue, merely the product of Western [End Page 838] individualism. 2 One reality that has strengthened the need for the universalization of human rights is the trend toward rapid globalization in almost every sphere of human endeavor. The spread of the Western model of the state to Africa and other parts of the developing world has given rise to the need for constitutional and other legal guarantees of human rights. Thus, the modern concept of human rights, admittedly a product of the West, is increasingly becoming equally relevant in other parts of the world.
The universalization of human rights, however, has not precluded attempts to temper the modern content of "universal" rights with the specific cultural experiences of various societies. In the case of Africa, this desire has led to calls for a regime of human rights founded on the basic universal human rights standards but also enriched by the African cultural experience. The challenge, therefore, is how to achieve this balance of values: how to uphold national human rights standards while resolving the apparent conflict between them and the dominant cultural traditions of the constituent communities within the state.
This article examines this dilemma that confronts many African states and explores ways in which culture, through adaptation and modification, can serve to complement rather than constrain specific national human rights aspirations. It is not enough to identify the cultural barriers and limitations to modern domestic and international human rights standards. It is even more important to understand the social basis of these cultural traditions and how they may be adapted to or integrated with national legislation to promote human rights. This article argues that such adaptation and integration must be done in a way that does not compromise the cultural integrity of peoples. In this way, the legal and policy provisions of national human rights can derive their legitimacy not only from state authority but also from the force of cultural traditions. [End Page 839]
II. Cultural Legitimacy and the Human Rights Discourse in Africa
In his evaluation of the dominant trends in African human rights discourse, Akwasi Aidoo decries the fact that "[o]riginal research in the area of human rights in Africa is scanty." 3 He notes the seeming preoccupation of African scholars with human rights discourse at the formal public sphere (where human rights violations occur as a result of dramatic political events and conflicts). This preoccupation results in the relative neglect of the sphere of civil society where cultural traditions and customs impact negatively on specific rights. Aidoo emphasizes the need for urgent research on such themes as the "cultural foundations of human rights" among others, which in his view have not been sufficiently addressed by African scholars. 4
The point that Akwasi Aidoo makes is not peculiar to human rights discourse in Africa. Indeed, apart from the broad theoretical debate over universalism and cultural relativism, the global human rights discourse has focused less on specific empirical studies on...