Makau Mutua, “Human Rights in Africa: The Limited Promise of Liberalism,” African Studies Review 51 (2008), excerpt | Samuel Moyn | August 10, 2016

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Makau Mutua, “Human Rights in Africa: The Limited Promise of Liberalism,” African Studies Review 51 (2008), excerpt

…The last fifty years represent the entire period of the African postcolonial state, and give us a fantastic window through which to interrogate the performance of the human rights project in Africa. But first, I want to lay aside some misconceptions about the human rights corpus and the movement. At the outset, though, I want to level with you about the subject of intellectual bias or normative location. Even though objectivity is the name of our game, we are nevertheless products of the legacies and heritages that have forged our identity and philosophical outlooks. In that sense, true objectivity is an academic fiction, for no one could be truly objective. In any case, if we were truly objective, we would be truly boring. And so, I want to plead my biases at the outset. But I also want to warn you that with respect to the subject at hand—that of the utility of human rights and liberalism in Africa—I adopt the view of an insider-outsider, an engaged skeptic who completely believes in human dignity but is not sure about the typology of political society that ought to be constructed to get us there.

Third World scholars like myself come to the study of human rights with a considerable degree of discomfort and an in-built sense of alienation. Neither human rights, nor liberalism, has been germinated in the African garden. To be sure, my native ears are not deaf to many of the substantive issues addressed by both disciplines. I have a keen interest in the relationships between states and citizens. My alienation comes not from these facts, but from the particularized historical, cultural, and intellectual traditions and tongues in which both human rights and liberalism law are steeped. It is in that sense that I am an outsider. Though an outsider to human rights and liberalism, I am in a very real sense an insider to both. I am part of the international elite that benefits personally from the norms and structures of international liberalism. My reality is not that of marginal and downtrodden citizens in Latin America, Africa, Asia, or for that matter, North America. I do not strain under the daily avalanche of the cruelties of globalization, state repression, and abuse.

But I am also an outsider because of that other consciousness which I carry, the consciousness of the historical, political, and cultural realities of the Africa that I am a part of, indeed of the Third Word to which I belong, as distinct from the West. In human rights, I see a system of ordering the world, of understanding the world, a system and normative edifice that makes me accurately aware of my subordinate and marginal place in it, as the “other.” This is not to say that I completely reject the human rights project or dismiss its redemptive impulses and purposes. It is rather to say that human rights are not for me a final, inflexible truth, or a glimpse of eternity, so to speak. That is to say that I do not see the human rights project as some kind of a sacred gospel with armies of missionaries poised to save savage cultures from themselves so that they can stop churning out victims. Human rights do not have a holy writ, nor could they, because like all rights regimes, they are just a genre of socially constructed tenets that have come to define modern civilization. Nor should human rights be, as its most dominant proponents have constructed them, a part of the colonial project that forms the unbroken chain of the Christian missionary, the early merchant of capital, and the colonial administrator. I guess these observations mean that I am not a true liberal, a label that I do not want to wear anyway. …

It is very strange that the founding documents of the human rights movement studiously avoided—did not even mention once—the most important words and terms of the past several hundred years. They still don’t. Is it not very curious that neither the UDHR, the ICCPR (International Covenant on Civil and Political Rights), nor the ICESCR (International Covenant on Economic, Social and Cultural Rights) uses the terms “capital,” “market,” “colonize,” “imperial,” “political democracy,” “liberalism,” or any of their derivatives? The exceptions are the oblique and dubious references to “democracy” in the UDHR and the ICCPR. The UDHR appears to sanction political democracy as the presumptive choice of the human rights corpus, although it does not explicitly say so, or explain why. The reference to “democracy” in the ICCPR is similarly vague. There are possible explanations for these omissions, or the reluctance to identify the human rights movement with a particular normative tradition, philosophy, or ideology. Were any of these deficits deliberate or calculated? Whatever the case, the lack of extended theories and philosophical justifications for the human rights corpus has left the doctrine vulnerable to attack. Importantly, it has mystified and obfuscated the normative and cultural gaps in the corpus.

That is why I contend that the human rights corpus is a moral project of political democracy, and that the failure of the framers to openly base the doctrine on this irrefutable premise has done more damage than good. First, it leaves human rights discourse as a project that orbits in space, not anchored in historical, cultural, and ideological choices. This abstraction is either debilitating, if you are critic, or empowering, if you are a true believer. As a critic, one starts from the disadvantage of disproving a negative. But as a believer, all one has to do is deny the negative. Second, the distortion of the true identity of the corpus masks its deficits, and makes it difficult to debate them in the open. It is an exercise that is akin to shadow boxing. The target is elusive, and the energy expended is not productively applied. Third, because of historical delinking of political democracy from human rights, a critique of the former is not necessarily the unveiling of the latter. Soon the problem becomes obvious. The human rights corpus has a mercurylike quality: elusive and slippery. This is not a fingerprint that augurs well for a truth-searching inquiry. Nor does it render the corpus to a reformist impulse. My argument is that identifying—equating—political democracy with human rights would provide us with a solid foundation for debating, articulating, and formulating an ideology that can better respond to powerlessness, human indignity, and the challenges of markets and globalization.

The human rights movement is presented by its scholars and advocates as above politics. Even though its basic texts assume a genre of political and social organization, the literature and discourse of human rights are divorced from self-interest, ideology, materialism, and partisanship. Instead, movement scholars and activists paint it as a universal creed driven by nobility and higher human intelligence. The idiom of human rights is tinged with metaphors and language that suggest eternity or a final resting point in human history. The basic human rights documents are not presented as either instrumentalist, utilitarian, experimental, or convenient. Rather, the authors speak as though such documents are the final truth. This elusive, yet lofty, idealism is almost biblical in its forbidding language. It implies that questioning its doctrine is perverse and unwelcome. The reality, however, is that human rights norms address mundane human problems and are routine politics. That is why the veneration of human rights, together with the attempt to clean the movement of partisanship, requires close and critical scrutiny. …

how can human rights as conceived be of any help to the reconstruction and recovery of the African postcolonial state? Five decades after decolonization, the African state is still haunted by crises of geographic, political, and moral legitimacy. It is beset by the protracted reality of national incoherence and the ills of economic underdevelopment. At its dawn, the African postcolonial state was handed a virtually impossible task: Assimilate the norms of the liberal tradition overnight within the structures of the colonial state while at the same time building a nation from disparate groups in a hostile international political economy. Instead, the newly minted African postcolonial elites chose first to consolidate their own political power. We can blame them now, as I have, but we must also understand that the first instinct of the political class is to consolidate itself and concentrate power in its own hands.

In the Cold War context, this frequently meant stifling dissent, dismantling liberal constitutions, retreating to tribal loyalties or sycophantic cronies, and husbanding state resources for corruption or patronage purposes. In other words, any viable fabric of the postcolonial state started to crumble even before it was established. We know the rest—coups and countercoups, military regimes, and one-party dictatorships with the inevitable results of economic decay; collapse of infrastructure; the fragmentation of political society; bilious retribalization; religious, sectarian, and communal conflicts and civil wars; and state collapse in a number of cases. The achievement of political independence from colonial rule turned into a false renaissance as one African country after another experienced transitional difficulties. While the African state retained some form of international legitimacy, its domestic writ was wafer thin. It was a miracle that many African states did not implode altogether, given the challenges to internal legitimacy. Whatever the case, the liberal tradition failed to take hold as human rights were violated across the board.

However, the 1980s saw a resurgence of civil society and the reemergence of the political opposition. This started what has come to be loosely referred to as the Second Liberation. The entire continent was rocked by a wave of political liberalization not witnessed since the 1950s and 1960s. Virtually all states succumbed to some version of political reform. In all cases, the civil society and the political opposition sought a new social compact framed by the tenets of the liberal tradition. These were the rule of law, political democracy through multipartyism, checks on executive power, limitations on the arbitrary use of state power, judicial independence, directly elected and unencumbered legislatures, separation of powers, freedoms of the press, speech, assembly, and association—in a word, the whole gamut of civil and political rights or the full complement of so-called basic human rights.

It was as though Africans were asking to go back to the liberal constitutions imposed by the departing colonial powers. In some cases, new constitutional orders were established to respond to these demands. But a decade and a half after the frenzy to reintroduce the liberal tradition to the politics of Africa, we cannot count many blessings because the tumult of political liberalization has yielded very mixed results. Optimists see a steady progression, even though the reversals have been many and discouraging. Pessimists, or what one might even want to call realists, see an African state that is a stubborn predator, unable and unwilling to accept reform. For every one step forward, there seem to be several steps back. The near melt-down of Kenya in the aftermath of the December 2007 election is only one case in point.

Is the African state impervious to human rights and the liberal tradition, or is the problem much more serious? The fault is variously placed on a bankrupt elite or political class; structural impediments within the state (ethnicity, religious zealotry, underdevelopment, the failure to establish a legitimate political order, social cleavages); an unyielding international economic order. Whatever the case, the jury on the current process of political liberalization, which is taking place simultaneously with economic globalization, is still out. It is still too early to say for certain whether the African postcolonial state is out of the woods.

The Limitations of Human Rights

The human rights corpus is defined by a variety of pathologies—both of choice and substance—that are limited and limiting. Many of these pathologies arise not only from the internal logic of the corpus but also the tactical and strategic choices that its proponents have made over the past sixty years. One of these is the equation of the containment of state despotism with the attainment of human dignity. This “hands off” logic is an integral, if not the essential, signature of the corpus. Without going into a discussion about the critique of rights—indeterminacy, elasticity, and their double-edge signature—suffice it to note that the human rights project basically polices the space between the state and the individual, and not between individual citizens. As put by Karl Klare, the dominant understanding of “the human rights project is to erect barriers between the individual and the state, so as to protect human autonomy and self-determination from being violated or crushed by governmental power.” Yet there is nothing intrinsic about human beings that requires only their protection from the state and not the asymmetries of power among them.

This definition of the nature of human dignity, which draws heavily from liberalism and political democratic theory, has an atrophied understanding of the role of the state. Admittedly, the thick welfare state is an attempt to emphasize a more robust view of liberalism. In human rights doctrine, this fuller iteration of liberalism is ostensibly contained in the ICESCR. However, the flaccidity, impotency, and vagueness of the ICESCR are evidence of the bias of the corpus to the more limited vision. As is the case with political democracy, the human rights regime appears to be more concerned with certain forms of human powerlessness than with others. This has certainly been the practice of human rights by the most influential human rights NGOs and institutions. In fact, there does not exist a major human rights NGO in the West that focuses on economic, social, and cultural rights. The problem is not simply one of orientation, but a fundamental philosophical commitment by movement scholars and activists to vindicate “core” political and civil rights over a normative articulation that would disrupt vested class interests and require a different relationship between the state and citizens and among citizens. It seems to have been convenient for human rights NGOs to shy away from questions of economic powerlessness during the Cold War because charities and Western governments frowned upon them. If so, it was a bias that was more than strategic—it was ideological.

One of the more interesting pathologies of the human rights texts is their avoidance or reluctance to employ a certain vocabulary to describe powerlessness. What is striking about the key human rights documents is their failure to use some of the most important terms of the modern era to describe and formulate societal responses. In terms of power or lack of it, and the consequent violations, there are no more important words than “capitalism,” “imperialism,” “colonialism,” and “apartheid.” Yet the UDHR—the single most important human rights document—sanctions the right to private property (Article 147). How credible is a document that calls itself a “common standard of achievement for all peoples and nations” (Preamble) if it does not recognize that at its writing most of the global South was under European colonial rule and subject to the vilest economic exploitation by the merchants of capital? It is difficult to believe that such an omission was an oversight. At the time, there was an epochal contest between socialism and capitalism. This too appears to have been conveniently overlooked in the basic texts. Or was it? My submission is that there was a surreptitious recognition of secularism, capitalism, and political democracy through the guarantee of the rights that yield a society framed by those systems.

The failure to wrestle with the types of economic philosophies and systems that would best protect and nurture a fuller definition of human dignity has had a devastating effect on the human rights movement. From the start, the movement and its founders did not see themselves as charged with the responsibility to address economic powerlessness. Even though the UDHR addresses some economic, social, and cultural rights, it is clear that they are an afterthought and marginalized within the document. Only the last six articles are devoted to these rights. But even so, the rights are not scripted in a way that directly confronts powerlessness and exploitation. The rights relating to work and labor assume, for example, the fact and legitimacy of capitalism and free markets (see Articles 23–25). Working people are therefore expected to fight for their rights within those systems and structures. The same logic is the basis for the ICESCR, which presumably grants rights within a system of free enterprise that protects workers from the worst excesses of global capitalism. In this regard, the ICESCR should be understood as a normative project for a thick welfare state within a market economy. It is a document that seeks to mitigate the harshness of capitalism and give it a more human face.

This failure of imagination and acquiescence to a free market vision of political democracy has robbed the human rights corpus and the movement of the impetus to think beyond markets and systems of exploitation that produce ugly social structures. Fundamentally, the human rights corpus has no philosophy on money and whether, for example, the creation of a Bill Gates would itself be a violation of human rights norms. In political society, an absolute dictator would be impermissible under human rights norms and contemporary understandings of political democracy. Analogously, Bill Gates is the market equivalent of the political dictator, although that is not how he is understood in a political democracy or by the human rights corpus. In fact, Gates is a celebrated and venerated individual, the pinnacle of success in society. Yet the existence of his economic empire, which he holds personally, is a radical perversion of any egalitarian or equitable notions of human dignity. The multiplication of Gates by the number of other obscenely rich individuals and corporate interests yields a graphic over-concentration of power in the hands of a tiny majority. It is very difficult, if not impossible, to articulate a plausible argument of how a system that permits such vast differences among citizens does not violate basic notions of human dignity. In an era of globalization, in which capital knows no borders and is virtually unaccountable, questions of economic justice and fairness should obsess the human rights corpus and the movement. It is not enough to decry, as human rights NGOs do, the worst excesses of globalization, or the most shocking practices such as sweatshops and cruel labor and slavelike conditions of work. The corpus must develop a defensible normative project to address economic and social arrangements and systems. Rather than treat the government simply as the regulator of markets—as is the case in a political democracy—human rights norms must do more.

Perhaps one way of addressing this pathology is to reassess the place and role of the individual in society relative to the greater public good of the community and the environment. One of the problems here is the elevation of the individual and his placement above society. This runaway notion of individualism, which is a central tenet of liberalism, has retarded the capacity of human rights thinkers to moderate selfishness with community interests. In other words, the individual should be placed within the society and constructed in such a way that he does not overwhelm his fellow beings or the society itself. There is nothing natural, inevitable, or frozen in time about how the individual ought to be constructed. Nor should a reconstruction of the individual necessarily wreak havoc with more defensible notions of popular sovereignty, individual autonomy, and political freedom. But this is an exercise that will require thinkers to look beyond Eurocentric lenses to build a more universal vision of the individual. The individual need not necessarily be placed at the center of the moral universe. Otherwise, the vices and abominations of globalization are bound to overcome the human race.

Finally, the human rights corpus and movement focus too much on process and rights at the expense of politics and substance. This distinction is both a product of the rights idiom in which the corpus is expressed and tactical and strategic choices by movement activists. The movement sees itself as vindicating rights that are coded in positive law. In contrast, politics is partisan, sloppy, and lacking in neutrality. By casting themselves as doing the work of the law, movement activists perpetuate the myth of objectivity. In fact, during the Cold War the human rights community in the West deliberately distanced itself from the overt promoters of democracy in the global South and the Soviet bloc. Instead, human rights activists presented themselves as a community interested in process and the rule of law, not politics or the ideological project of democracy. …

This diffidence has been limiting to the human rights movement. Why hide the ball? Everything should be placed on the table so that we can openly debate questions of power and powerlessness and how to reformulate the human rights corpus to address pressing crises. Perhaps we will decide that human rights is not the right language for this struggle. Perhaps it is. In any case, we will never know until we take off the veil. What is clear today is that the movement will lose its relevance unless it can address—seriously and as a priority—human powerlessness in all its dimensions.

Can Human Rights Recover the African State?

The limitations that curtail the ability of the human rights corpus to respond to Africa’s crises are conceptual and normative. The first limitation is simply one of the idiom in which the rights discourse is formulated. The language of rights, which is central to liberalism, is fraught with limitations which could be detrimental to the project of transforming deeply distorted societies. Inherent in the language of rights are indeterminacy, elasticity, and the double-edged nature of the rights discourse. All these characteristics open the rights language to malleability and misuse by malignant social elements, and they turn it into a tool in the hands of those opposed to reform. A case in point is South Africa, where a rights-based revolution has been unable to fundamentally transform deeply embedded social dysfunction and the perverse legacy of apartheid. The choice of the rights idiom as the medium of choice to unravel the ravages of apartheid has been less than successful in spite of continued economic growth.

Another problem of the liberal tradition, which has been inherited by the human rights movement, is its unrelenting focus on individualism. This arises from liberalism’s focus on formal equality and abstract autonomy. The human rights corpus views the individual as the center of the moral universe, and therefore denigrates communities, collectives, and group rights. This is a particularly serious problem in Africa, where group and community rights are both deeply embedded in the cultures of the peoples and exacerbated by the multinational nature of the postcolonial state. The concept of self-determination in Africa cannot simply be understood as an external problem: it must, of necessity, be understood as encompassing the many nations within a given postcolonial state. In reality, this means that individual rights of citizens within the state must be addressed in the context of group rights. Thus group rights or the rights of peoples become important entitlements if the state is to gain the loyalties of its diverse citizens.

I do not deny that individualism is a necessity for any constitutional democracy, but I reject the idea that we can, or should, stop there in Africa. That would be a stunted understanding of rights from an African point of view. Indeed, for rights to make sense in the African context, one has to go beyond the individual and address group identities in the political and economic framework of the state. Even in South Africa, for example, one of the states with an avowedly liberal interpretation of the rights language, there was an accommodation of group rights to language, culture, and other forms of identity. One way political democracy deals with the question of multiple nations within one state is to grant autonomous regimes for groups or to devolve powers through forms of federalism. But the paradox for Africa is that autonomous regimes or federalist arrangements have not worked well wherever they have been tried. These schemes have been unable to stem the combustible problem of ethnicity and reduce the legitimacy of the state. Ethnic groups retain a consciousness that stubbornly refuses to transfer loyalty from the group to the whole nation.

Second, the human rights movement’s primary grounding and bias toward civil and political rights—and the impotence and vagueness of economic, social, and cultural rights—is one of its major weaknesses in the African postcolonial context. Political democracy alone—without at least a strong welfare state or a social democracy—appears to be insufficient to recover the African state. The bias toward civil and political rights favors vested, narrow class interests and kleptocracies which are entrenched in the bureaucratic, political, and business sectors of society and represent interests that are not inclined to challenge the economic powerlessness of the majority of postcolonial Africans. Yet the human rights movement assumes the naturalness of the market and the inevitability of employer–employee, capitalist–worker, and subordinated labor relations. It seeks the regulation of these relationships, but not their fundamental reformulation.

By failing to interrogate and wrestle with economic and political philosophies and systems, the human rights movement indirectly sanctions capitalism and free markets. Importantly, the human rights corpus wrongly equates the containment of state despotism with the achievement of human dignity, so that it seeks the construction of a political society in which political tyranny—not economic tyranny—is circumscribed. But in so doing, it sidesteps economic powerlessness—the very condition that must be addressed if the African state is to be recovered. Clearly, political freedoms are important, but as South Africa has demonstrated, these are of limited utility in the struggle to empower populations and reduce the illegitimacy of the state. It is an illusion to think of powerlessness and human indignity in the African context in purely political terms, as the human rights movement does, and to prescribe political democracy and the human rights doctrine as a panacea.

Real human powerlessness and indignity in Africa—the very causes of the illegitimacy of the African state—arise from social and economic conditions. That is why the human rights movement’s recognition of secularism, capitalism, and political democracy must be discussed openly to unveil its true identity so that we can recalculate its uses, and the limitations of those uses, to the reconstruction of the African state. To be useful to Africa’s reconstruction, human rights cannot simply be advocated as an unreformed Eurocentric doctrine that must be gifted to native peoples. Nor can it be imposed on Africa like an antibiotic, or be seen as a cure for the ills of a dark continent. I am afraid that this is how many in the West imagine what for them is a human rights crusade toward Africa. So far, this law-and-development model has not—and will not—work. Not only is it an imposition, but it would also deal mostly with symptoms, while leaving the underlying fundamentals untouched.

To be of utility to Africa, and fundamentally transform the continent’s dire fortunes, human rights must address economic powerlessness and the scandalous international order. Otherwise, it will promise too much while delivering too little, as it did in the case of Rwanda with the establishment of the International Criminal Tribunal for Rwanda and a false peace within the country. It will promise too much, while delivering too little, as it did in the wave of the so-called Second Liberation. The challenge for us is to figure out how we can retool and rethink the human rights project as one of the vehicles for the reconstruction of the African postcolonial state. I am afraid that this is a task for which we have been found wanting. …

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August 10, 2016

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Samuel Moyn

Harvard Law School

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