Makau1995.pdf

(Excerpt from)

The Banjul Charter and the African Cultural Fingerprint:
An Evaluation of the Language of Duties

By

Makau wa Mutua

35 Va. J. Int’l L. 339

Winter, 1995

(Notes omitted)

In the West, the language of rights primarily developed along the trajectory of claims against the state; entitle-

ments which imply the right to seek an individual remedy for a wrong. The African language of duty, however, of-
fers a different meaning for individual/state-society relations: while people had rights, they also bore duties. The
resolution of a claim was not necessarily directed at satisfying or remedying an individual wrong. It was an oppor-
tunity for society to contemplate the complex web of individual and community duties and rights to seek a balance
between the competing claims of the individual and society.

This view is not relativist. It does not advance or advocate the concept of apartheid in human rights or the no-
tion that each cultural tradition has generated its own distinctive and irreconcilable concept of human rights. It
proceeds from the position that, although cultural relativism in human rights as an anti-imperial device is admirable,
it is a misunderstanding inspired by cultural nationalism. What its proponents see as radically distinctive, irreconcil-
able traditions also possess ideals which are universal. Most critiques of cultural relativism, on the other hand, are
ethnocentric and symptomatic of the moral imperialism of the West. Both extremes only serve to detain the devel-
opment of a universal jurisprudence of human rights.

In reality, the construction and definition of human rights norms are dynamic and continuous processes. Hu-
man rights are not the monopoly or the sole prerogative of any one culture or people, although claims to that end are
not in short supply. In one culture, the individual may be venerated as the primary bearer of rights; while, in an-
other, individual rights may be more harmonized with the corporate body. Rather than assert the primacy of one
over the other, or argue that only one cultural expression and historical experience constitutes human rights, this
author views each experience as a contributor to the whole. The process of the construction of universal human
rights is analogous to the proverbial description of the elephant by blind men: each, based on his sense of feeling,
offers a differing account. However, all the accounts paint a complete picture when put together. As a dynamic
process, the creation of a valid conception of human rights must be universal. That is, the cultures and traditions of
the world must, in effect, compare notes, negotiate positions, and come to agreement over what constitutes human
rights. Even after agreement, the doors must remain open for further inquiry, reformulation, or revision.

II. Human Rights in Pre-colonial Africa:

Content and Context

This segment of the Article will explore the validity of both the argument made often by Africans, and the con-
troversy it engenders, that the concept of human rights was not alien to pre-colonial societies and that such notions
were the foundation of social and political society. Recent debates, which are primarily interpretive, have focused
attention on this divisive theme. They agree on basic behavioral, political, and social characteristics but disagree as
to their meaning. There are no easy answers for a number of reasons. In particular, methodological pitfalls exist for
any analysis that attempts to address the length and width of sub-Saharan Africa. The sheer size of the continent,
and the diversity of African peoples and their societies, defy easy categorization or generalization. Secondly, with
regard to human rights, there are very few extant sources of pre-colonial societies. The oral tradition common to
most of Africa had its own imprecision even before its interruption by the forces of colonialism.

Nevertheless, several broad themes are discernable from the past. It is now generally accepted that the African
pre-colonial past was neither idyllic nor free of the abuses of power and authority common to all human societies.
However, the despotic and far-reaching control of the individual by the omnipotent state, first perfected in Europe,
was unknown. n20 Instead, pre-colonial Africa consisted of two categories of societies: those with centralized au-
thority, administrative machinery, and standing judicial institutions, such as the Zulu and the Ashanti, and those
with more communal and less intrusive governmental paraphernalia, such as the Akamba and Kikuyu of Kenya.

1

But a feature common to almost all pre-colonial African societies was their ethnic, cultural, and linguistic homoge-
neity – a trait that gave them fundamental cohesion.

Had these political societies developed the concept of human rights? Proponents of the concept of human
rights in pre-colonial African societies are accused by their opponents of confusing human dignity with human
rights. This view holds that the “African concept of justice,” unlike human rights, “is rooted not in individual
claims against the state, but in the physical and psychic security of group membership.” While it is probably correct
to argue that African societies did not emphasize individual rights in the same way that European societies did, it is
not a correct presumption to claim that they did not know the conception of individual rights at all.

According to Ronald Cohen, a right is an entitlement:

At its most basic level, a human right is a safeguarded prerogative granted because a person is alive. This
means that any human being granted personhood has rights by virtue of species membership. And a right is a
claim to something (by the right-holder) that can be exercised and enforced under a set of grounds or justifica-
tions without interference from others. The subject of the right can be an individual or a group and the object is
that which is being laid claim to as a right.
(Ronald Cohen, Endless Teardrops: Prolegomena to the Study of Human Rights in Africa, in Human Rights
and Governance)

Moreover, a brief examination of the norms governing legal, political, and social structures in pre-colonial societies
demonstrates that the concept of rights, like that articulated by Cohen, informed the notion of justice and supported
a measure of individualism. Two societies which are representative of the two basic organizational paradigms
prevalent in pre-colonial Africa illustrate the point. The Akamba of east Africa were symptomatic of the less rigidly
organized societies, whereas the Akans of west Africa were characteristic of the more centralized state systems. In
Akan thought, the individual had both descriptive and normative characteristics. Both endowed the person with
individual rights as well as obligations. Similarly, the Akamba believed that “all members were born equal and
were supposed to be treated as such beyond sex and age.” n27 The belief prevailed in both societies that, as an
inherently valuable being, the individual was naturally endowed with certain basic rights.

Akan political society was organized according to the principle of kinships. A lineage of those who were de-
scended from the same ancestress formed the basic political unit. Adults in each lineage elected an elder. All line-
age heads, in turn, formed the town council which was chaired by a chief who, though chosen according to descent,
was in part elected. The chief, however, could not rule by fiat, because decisions of the council were taken by con-
sensus. Moreover, council decisions could be criticized publicly by constituents who found them unacceptable. As
Wiredu explains, there was no “doubt about the right of the people, including the elders, to dismiss a chief who tried
to be oppressive.”

Among the Akamba, individuals joined the elders council, the most senior rank in Akamba society, after dem-
onstrating commitment to the community and responsibility in personal matters. Maintaining a stable household,
which included a spouse or spouses and children, was a necessary precondition. The council was a public forum
which made decisions by consensus. Although the Akamba resented any social organization with a central author-
ity, the council’s services included the legislation of public norms and customs. These two examples demonstrate
that individuals in pre-colonial society had a right to political participation in determining by whom and through
what policies to be ruled.

Much of the discussion about whether pre-colonial societies knew of and enforced individual human rights has
taken place in the absence of considered studies of, and reference to, judicial processes in those societies. A pre-
liminary examination of both the Akan and Akamba societies strongly indicates individual-conscious systems of
justice. With respect to the Akamba, a party to a complaint appeared before the council of elders in the company of
his jury, a selection of individuals who enjoyed the party’s confidence. Unlike Western-style jurors, the Akamba did
not hand down a verdict, but advised the party on how to plead and what arguments to put forth to win the case.
They had to be steeped in Kamba law, customs, and traditions. The threat of the administration of kithitu, the
Kamba oath, which was believed to bring harm to those who lied, encouraged truthfulness. After presentations by
parties, the elders would render judgement or give counsel on the appropriate settlement. Each offense carried a
punishment: murder was compensated by the payment of over ten head of cattle; rapists were charged goats; as-
saults, depending on their seriousness, could cost over ten head of cattle; adultery was punishable by the payment of
at least a goat and bull; and an arsonist was required to build his victim a new house or replace the lost property.
Individual rights to cultivated land were also recognized and protected. These elaborate punishments present just
one indication of the seriousness with which Kamba society took individual rights to personal security, property,
marriage, and the dignity and integrity of the family.

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In Akan society, the principle of innocent-until-proven-guilty was deeply embedded in social consciousness.
According to Wiredu, “it was an absolute principle of Akan justice that no human being could be punished without
trial.” The Akans, like the Akamba, also recognized a wide range of individual rights: murder, assault, and theft
were punished as violations of the person.

For those who deny the recognition of human rights in pre-colonial societies, it must come as a strange irony
that the human rights corpus shares with pre-colonial Africa the importance of personal security rights. The right to
life, for example, was so valued that the power over life and death was reserved for a few elders and was exercised
“only after elaborate judicial procedure, with appeals from one court to another, and often only in cases of murder
and manslaughter.” This respect for human life was not an aberration. Fernyhough notes that much of Africa is
characterized by a “preoccupation with law, customary and written, and with legal procedure.” He adds that the
Amhara of Ethiopia, for example, have historically relished litigation and the lengthy cross-examination of wit-
nesses. Whether a society was highly centralized or not, “there existed elaborate rules of procedure intended to pro-
tect the accused and provide fair trials.” The protection of individual rights was of preeminent importance to pre-
colonial societies.

Many of the Akamba and Akan socio-political norms and structures were common to other pre-colonial ethno-
political entities or cultural-nations. This Article refers to these shared basic values as the index of the African cul-
tural fingerprint, that is, a set of institutional and normative values governing the relationship between individuals,
the society, and nature. To be sure, the fingerprint belongs to Africa although it is also human and, thus, aspects of
it reveal universal characteristics. In the search for the definition of the continent, for what sets it apart from Asia
and Europe or the Americas, some writers have labelled the cultural and social patterns distinctive to the continent
as the “African personality.” Leopold Sedar Senghor, for one, called it negritude or “the manner of self-expression
of the black character, the black world, black civilization,” while Aime Cesaire described it simply as “recognition
of the fact of being black, and the acceptance of that fact, of our destiny of black, of our history and our culture.”
Julius Nyerere named it ujamaa, the Kiswahili term for African socialism. The principles and ideals common to all
these conceptions are, according to the author’s own observations of various African societies, respect for, and pro-
tection of, the individual and individuality within the family and the greater socio-political unit; deference to age
because a long life is generally wise and knowledgeable; commitment and responsibility to other individuals, fam-
ily, and community; solidarity with fellow human beings, especially in times of need; tolerance for difference in
political views and personal ability; reciprocity in labor issues and for generosity; and consultation in matters of
governance. As aptly put by Cohen,

many African cultures value the group – one should never die alone, live alone, remain outside social net-
works unless one is a pariah, insane, or the carrier of a feared contagious disease. Corporate kinship in which
individuals are responsible for the behavior of their group members is a widespread tradition. But in addition,
the individual person and his or her dignity and autonomy are carefully protected in African traditions, as are
individual rights to land, individual competition for public office, and personal success.

This conception, that of the individual as a moral being endowed with rights but also bounded by duties, proac-
tively uniting his needs with the needs of others, was the quintessence of the formulation of rights in pre-colonial
societies. It radically differs from the liberal conception of the individual as the state’s primary antagonist. More-
over, it provides those concerned with the universal conception of human rights with a basis for imagining another
dialectic: the harmonization of duties and rights. …

Many of those who dismiss the relevance of the African conception of man by pejoratively referring to it as a
“peasant” and “pre-industrial” notion fail to recognize that all major cultures and traditions – the Chinese, European,
African, and the Arab, to mention a few – have a basic character distinctive to them. While it is true that no culture
is static, and that normative cultural values are forever evolving, it is naive to think that a worldview can be eroded
in a matter of decades, even centuries. Why should the concession be made that the individualist rights perspective
is “superior” to more community-oriented notion? As Cobbah has noted, “in the same way that people in other cul-
tures are brought up to assert their independence from their community, the average African’s worldview is one that
places the individual within his community.” This African worldview, he writes, “is for all intents and purposes as
valid as the European theories of individualism and the social contract.” Any concept of human rights with preten-
sions of universality cannot avoid mediating between these two seemingly contradictory notions.

IV. Prospects and Problems for the

Duty/Rights Conception

The idea of combining individual rights and duties in a human rights document is not completely without
precedent. No less a document than the Universal Declaration of Human Rights (UDHR) blazed the trail in this

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regard when it provided, in a rare departure from its individualist focus, that “everyone has the duties to the com-
munity in which alone the free and full development of his personality is possible.” However, the African Charter
is the first human rights document to articulate the concept in any meaningful way. It is assumed, with undue haste,
by human rights advocates and scholars that the inclusion of duties in the African Charter is nothing but “an invita-
tion to the imposition of unlimited restrictions on the enjoyment of rights.” This view is simplistic because it is not
based on a careful assessment of the difficulties experienced by African countries in their miserable attempts to
mimic wholesale Western notions of government and the role of the state. Such critics are transfixed by the allure of
models of democracy prevalent in the industrial democracies of the West, models which promise an opportunity for
the redemption of a troubled continent.

Unfortunately, such a view is shortsighted. Perhaps at no other time in the history of the continent have Afri-
cans needed each other more than they do today. Although there is halting progress towards democratization in
some African countries, the continent is generally on a fast track to political and economic collapse. Now in the
fourth decade of post-colonialism, African states have largely failed to forge viable, free, and prosperous countries.
The persistence of this problem highlights the dismal failures of the post-colonial states on several accounts. The
new African states have failed to inspire loyalty in the citizenry; to produce a political class with integrity and a
national interest; to inculcate in the military, the police, and the security forces their proper roles in society; to build
a nation from different linguistic and cultural groups; and to fashion economically viable policies. These realities
are driving a dagger into the heart of the continent. There are many causes of the problem, and, while it is beyond
the scope of this Article to address them all, it will discuss one: namely, the human rights dimensions of the rela-
tionship between the individual, the community, and the state.

Colonialism profoundly transformed and mangled the political landscape of the continent through the imposi-
tion of the modern state. Each pre-colonial African “nation,” and there were thousands of them to be sure, had sev-
eral characteristics: one ethnic community inhabited a “common territory; its members shared a tradition, real or
fictitious, of common descent; and they were held together by a common language and a common culture.” Few
African nations were also states in the modern or European sense, although they were certainly political societies. In
contrast, the states created by European imperialists, comprising the overwhelming majority of the continent, ordi-
narily contained more than one nation:

Each one of the new states contains more than one nation. In their border areas, many new states contain parts
of nations because of the European-inspired borders cut across existing national territories.

The new state contained a population from many cultural groups coerced to live together. It did not reflect a
“nation,” a people with the consciousness of a common destiny and shared history and culture. The colonialists
were concerned with the exploitation of Africa’s human and natural resources, and not with the maintenance of
the integrity of African societies. For purposes of this expediency, grouping many nations in one territory was
the only feasible administrative option. To compound the problem, the new rulers employed divide-and-
conquer strategies, pitting nations against each other, further polarizing inter-ethnic tensions and creating a cli-
mate of mutual fear, suspicion, and hatred. In many cases, the Europeans would openly favor one group or
cluster of nations over others, a practice that only served to intensify tensions. For example, in Rwanda, a coun-
try rife with some of the worst inter-communal violence since decolonization, the Belgians heightened Hutu-
Tutsi rivalry through preferential treatment toward the Tutsi.

Although, before the arrival of the Belgians, the Tutsi minority ruled over the Hutu majority and the Twa in a
feudal-client relationship, the colonial state “transformed communal relations and sharpened ethnic tensions by
ruling through a narrow Tutsi royalty. The access to resources and power that the Tutsi collaborators enjoyed
under the colonial state irreversibly polarized Hutu-Tutsi relations.” (Makau wa Mutua, U.N. Must Make
Rwanda a Priority, Oakland Tribune, May 25, 1994, at A13)

Ironically, colonialism, though a divisive factor, created a sense of brotherhood or unity among different Afri-
can nations within the same colonial state, because they saw themselves as common victims of an alien, racist, and
oppressive structure. Nevertheless, as the fissures of the modern African state amply demonstrate, the unity born
out of anti-colonialism has not sufficed to create an enduring identity of nationhood in the context of the post-
colonial state. Since in the pre-colonial era the primary allegiances were centered on lineage and the community,
n98 one of the most difficult challenges facing the post-colonial political class was the creation of new nations. This
challenge, referred to as “creating a national consciousness … was misleading,” as there was “no nation to become
conscious of; the nation had to be created concurrently with a consciousness.”

This difficult social and political transformation from self-governing ethno-cultural units to the multi-lingual,
multi-cultural modern state – the disconnection between the two Africas: one pre-colonial, the other post-colonial –
lies at the root of the current crisis. The post-colonial state has not altered the imposed European forms of social and
political organization even though there is mounting evidence that they have failed to work in Africa. Part of the

4

problem lies in the domination of the continent’s political and social processes by Eurocentric norms and values. As
correctly put by Hansen:

African leaders have adopted and continued to use political forms and precedents that grew from, and were or-
ganically related to, the European experience. Formal declarations of independence from direct European rule
do not mean actual independence from European conceptual dominance. African leaders and peoples have
gone through tremendous political changes in the past hundred years. These profound changes have included
the transformation of African societies and polities. They are still composed of indigenous African units, such
as the lineage, village, tribe, and chieftainship, but they have been transformed around European units, such as
the colony, district, political party, and state.

This serious and uniquely African crisis lacks the benefit of any historical guide or formula for its resolution.
While acknowledging that it is impossible to recapture and re-institute pre-colonial forms of social and political
organization, this Article nonetheless asserts that Africa must partially look inward, to its pre-colonial past, for pos-
sible solutions. Certain ideals in pre-colonial African philosophy, particularly the conception of humanity, and the
interface of rights and duties in a communal context as provided for in the African Charter, should form part of that
process of reconstruction. The European domination of Africa has wrought social changes which have disabled old
institutions by complicating social and political processes. Pre-colonial and post-colonial societies now differ fun-
damentally. In particular, there are differences of scale; states now have large and varied populations. Moreover,
states possess enormous instruments of control and coercion, and their tasks are now without number. While this is
true, Africa cannot move forward by completely abandoning its past.

The duty/rights conception of the African Charter could provide a new basis for individual identification with
compatriots, the community, and the state. It could forge and instill a national consciousness and act as the glue to
reunite individuals and different nations within the modern state, and at the same time set the proper limits of con-
duct by state officials. The motivation and purpose behind the concept of duty in pre-colonial societies was to
strengthen community ties and social cohesiveness, creating a shared fate and common destiny. This is the con-
sciousness that the impersonal modern state has been unable to foster. It has failed to shift loyalties from the line-
age and the community to the modern state, with its mixture of different nations.

The series of explicit duties spelled out in articles 27 through 29 of the African Charter could be read as in-
tended to recreate the bonds of the pre-colonial era among individuals and between individuals and the state. They
represent a rejection of the individual “who is utterly free and utterly irresponsible and opposed to society”. In a
proper reflection of the nuanced nature of societal obligations in the pre-colonial era, the African Charter explicitly
provides for two types of duties: direct and indirect. A direct duty is contained, for example, in article 29(4) of the
Charter which requires the individual to “preserve and strengthen social and national solidarity, particularly when
the latter is threatened.” There is nothing inherently sinister about this provision; it merely repeats a duty formerly
imposed on members of pre-colonial communities. If anything, there exists a heightened need today, more than at
any other time in recent history, to fortify communal relations and defend national solidarity. The threat of the col-
lapse of the post-colonial state, as has been the case in Liberia, Somalia, and Rwanda, is only too real. Political el-
ites as well as the common citizenry, each in equal measure, bear the primary responsibility for avoiding societal
collapse and its devastating consequences.

The African Charter provides an example of an indirect duty in article 27(2), which states that “the rights and
freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality
and common interest.” This duty is in fact a limitation on the enjoyment of certain individual rights. It merely rec-
ognizes the practical reality that in African societies, as elsewhere in the world, individual rights are not absolute.
Individuals are asked to reflect on how the exercise of their rights in certain circumstances might adversely affect
other individuals or the community. The duty is based on the presumption that the full development of the individ-
ual is only possible where individuals care about how their actions would impact on others. By rejecting the egotis-
tical individual whose only concern is fulfilling self, article 27(2) raises the level of care owed to neighbors and the
community.

Duties are also grouped according to whether they are owed to individuals or to larger units such as the family,
society, or the state. Parents, for example, are owed a duty of respect and maintenance by their children. Crippling
economic problems do not allow African states to contemplate some of the programs of the welfare state. The care
of the aged and needy falls squarely on family and community members. This requirement – a necessity today – has
its roots in the past: it was unthinkable to abandon a parent or relative in need. The family guilty of such an omis-
sion would be held in disgrace and contempt pending the intervention of lineage or clan members. Such problems
explain why the family is considered sacred and why it would be simply impracticable and suicidal for Africans to
adopt wholesale the individualist conception of rights. Duty to the family is emphasized elsewhere in the Charter

5

because of its crucial and indispensable economic utility. Economic difficulties and the dislocations created by the
transformation of rural life by the cash economy make the homestead a place of refuge.

Some duties are owed by the individual to the state. These are not distinctive to African states; many of them
are standard obligations that any modern state places on its citizens. In the African context, however, these obliga-
tions have a basis in the past, and many seem relevant because of the fragility and the domination of Africa by ex-
ternal agents. Such duties are rights that the community or the state, defined as all persons within it, holds against
the individual. They include the duties to “preserve and strengthen social and national solidarity;” not to “compro-
mise the security of the State;” to serve the “national community by placing his physical and intellectual abilities at
its service;” to “pay taxes imposed by law in the interest of the society;” and to “preserve and strengthen the na-
tional independence and the territorial integrity of his country and to contribute to its defence in accordance with the
law.”

The duties that require the individual to strengthen and defend national independence, security, and the territo-
rial integrity of the state are inspired by the continent’s history of domination and occupation by outside powers
over the centuries. The duties represent an extension of …

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