Afrika-Studiecentrum Series
Series Editor
Dr. Harry Wels
(VU University Amsterdam, the Netherlands)
Editorial Board
Prof. Bill Freund (University of KwaZulu-Natal, South Africa)
Prof. Lungisile Ntsebeza (University of Cape Town, South Africa)
Prof. Eddy van der Borght (VU University Amsterdam, the Netherlands)
Dr. Marja Spierenburg (VU University Amsterdam, the Netherlands)
VOLUME 26
Worlds of Human Rights
The Ambiguities of Rights Claiming in Africa
Edited by
Bill Derman, Anne Hellum, and Kristin Bergtora Sandvik
LEIDEN • BOSTON
Association; the formation of a new company (Muhunguti) owned by the Shigalo Communal Property Association.
Library of Congress Cataloging-in-Publication Data
Worlds of human rights : the ambiguities of rights claiming in Africa / edited by Bill Derman, Anne Hellum, and Kristin Bergtora Sandvik.
pages cm. -- (Afrika-Studiecentrum series ; volume 26) Includes index.
“This book is the result of a long standing collaboration among: Department of Anthropology, the African Studies Center and the Center for Gender in a Global Context at Michigan State University, the Institute of Women’s Law at the University of Oslo, VU University Amsterdam, the Center for Poverty, Land and Agrarian Studies at the University of the Western Cape, Bunda College of the University of Malawi, the Peace Research Institute of Oslo, and the Department of International Environment and Development Studies at the Norwegian University of the Life Sciences.” -- Acknowledgements.
Includes bibliographical references and index.
ISBN 978-90-04-24647-8 (paperback. : alk. paper) -- ISBN 978-90-04-25013-0 (e-book) 1. Human rights--Africa, Sub-Saharan. I. Derman, William, editor of compilation. II. Hellum, Anne, editor of compilation. III. Sandvik, Kristin Bergtora, editor of compilation.
KQC572.W67 2013 323.0967--dc23
2013000582
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List of Maps ...vii Acknowledgments ...ix About the Authors ...xi 1. Ethnographic and Historical Perspectives on Rights
Claiming on the African Continent ...1 Bill Derman, Anne Hellum and Kristin Bergtora Sandvik
PART I
LAND, PROPERTY AND HUMAN RIGHTS
2. Introduction ... 35 Bill Derman
3. Land Rights, Human Rights and Development:
Contestations in Land Restitution, Limpopo Province,
South Africa ... 49 Bill Derman, Anne Hellum and Tshililo Manenzhe
4. ‘Property’ and ‘Rights’ in a South African Land Claim Case ... 83 Knut G Nustad
5. ‘We agreed to move, but we did not do so freely’. Resettlement from the Limpopo National Park, Mozambique ...101 Marja Spierenburg
PART II
HUMAN RIGHTS IN A GENDERED, RELATIONAL AND PLURAL LEGAL LANDSCAPE
6. Introduction ...131 Anne Hellum
7. Between Common Community Interest and Gender
Difference: Women in South Africa's Land Restitution Process ...143
Anne Hellum and Bill Derman
8. Multiple Threats, Manifold Strategies: Women, the State and Secure Tenure at the Interface of Human Rights and Local
Practices in Dar es Salaam ...169 Ingunn Ikdahl
9. Coercive Harmony?: Realizing Women’s Rights through Alternative Dispute Resolution in Dar es Salaam’s Legal
Aid Clinics ...195 Natalie J. Bourdon
10. Translating Women’s Rights in Niger: What Happened to
the ‘Radical Challenge to Patriarchy?’ ...219 Kari Bergstrom Henquinet
PART III
THE MULTIPLE TRACKS OF HUMAN RIGHTS AND HUMANITARIANISM
11. Introduction ...245 Kristin Bergtora Sandvik
12. Rights-Based Humanitarianism as Emancipation or Stratification? Rumors and Procedures of Verification
in Urban Refugee Management in Kampala, Uganda ...257 Kristin Bergtora Sandvik
13. Emergent Eritrean Human Rights Movements: Politics,
Law, and Culture in Transnational Perspective ...277 Tricia Redeker Hepner
14. Malawi’s Orphans: Children’s Rights in Relation to
Humanitarianism, Compassion, and Childcare ...303 Andrea Freidus
Index ...333
Map 1. Limpopo Province with the location of the Levubu
restituted farms ...54
Map 2. The Great Limpopo Transfrontier Park ...102
This book is the result of a long standing collaboration among several aca- demic institutions: Department of Anthropology, the African Studies Center and the Center for Gender in a Global Context at Michigan State University, the Institute of Women’s Law at the University of Oslo, VU University Amsterdam, the Center for Poverty, Land and Agrarian Studies at the University of the Western Cape, Bunda College of the University of Malawi, the Peace Research Institute of Oslo, and the Department of International Environment and Development Studies at the Norwegian University of the Life Sciences. It is also a collaboration between lawyers and anthropologists working in the field of human rights, gender, develop- ment and humanitarianism in Africa. It is the outcome of two inter-related panels at the African Studies Association and the American Anthropolog- ical Association. The research which is presented has been funded by a number of different organizations. Firstly we would like to thank the Research Council of Norway. They funded the gender, law and develop- ment project and a PhD in Refugee Law within the Development Paths in the South Program. Within the Poverty and Peace Program they funded the Land, Water and Poverty Project in South Africa. We wish to thank the Fulbright Program for their support of the fieldwork for the American anthropologists who are part of this volume. Lastly, we wish to thank the South African Netherlands Programme on Alternatives in Development (SANPAD) and the Transboundary Protected Areas Research Initiative (TPARI) for their support of the transboundary park research.
Each of the chapters was carefully reviewed by the three editors. In
addition, all the chapters were reviewed by two anonymous reviewers for
Brill. We would like to thank all the authors in the book for their construc-
tive suggestions to the general book introduction and to the introductions
to each part of the book. Professor Anne Griffiths served as an insightful
discussant at the American Anthropological Association panel ‘Remaking
Human Rights: Between Western Hegemony and Local Hierarchy’ at
the American Anthropological Association Annual Meeting held in
Washington D.C.in 2007. We are also grateful to Professor Anne Ferguson
for her support and contributions along the way.
Natalie Bourdon teaches in the Women’s and Gender Studies and Anthropology Departments at Mercer University where she teaches courses in anthropology, African studies, human rights, feminist method- ology and theory. She has conducted research on feminism, NGO legal advocacy and human rights in Tanzania since 2004. She is currently working on a manuscript on Tanzanian NGO advocacy and activism on women’s land and inheritance rights based on nearly two years of anthro- pological research.
Bill Derman is Professor Emeritus of Anthropology at Michigan State University and a Professor of International Development and Environment Studies at the Norwegian University of the Life Sciences. His PhD is from the University of Michigan. His research foci include water and land gov- ernance, human rights, political ecology and southern Africa. He has pub- lished on land resettlement in the Zambezi Valley, water and land reform in Zimbabwe and South Africa. He is a co-editor of Citizenship and Identity:
Conflicts over Land and Water in Contemporary Africa (James Currey 2007) edited with Rie Odgaard and Espen Sjaastad. He is also a co-editor of In the Shadow of Zimbabwe’s Crisis: Migration, Effects and Responses in Mozambique, South Africa and Zambia (Weaver Press, 2013).
Andrea Freidus received her PhD from Michigan State University. She is currently a Visiting Assistant Professor at James Madison College, which is an interdisciplinary residential college situated on the Michigan State University campus. She is a medical anthropologist whose work focuses on Malawi, orphans, and medical humanitarianism. She also has an MPH with a specialization in Global Health from the University of South Florida.
Her publications cross disciplines and can be found in sociology, anthro- pology, women’s studies, and childhood studies journals.
Anne Hellum (dr. juris) is professor at the Faculty of Law, Department of
Public and International Law, University of Oslo, Norway. Key research
areas are discrimination and equality law, law and development and gen-
der, human rights and legal pluralism. Her most recent publications
are From Transnational Relations to Transnational Laws: Northern European
Laws at the Crossroads (with co-edited with Anne Griffiths and Shaheen
Ali, Ashgate 2010) and Human Rights of Women: CEDAW in International,
Regional and National Law (co-edited with Henriette Sinding Aasen, Cambridge University Press 2013). She has held a number of grants from the Norwegian Research Council the most recent is “Gender, Human Rights and Water Governance: Actors, Norms and Institutions in South Africa, Malawi, Kenya and Zimbabwe”. Since 1990 she has been visting pro- fessor at the Southern Eastern Regional Center of Women’s Law (SEARCWL) at the University of Zimbabwe.
Kari Bergstrom Henquinet is a Lecturer in the Social Sciences Department at Michigan Technological University and the Director of the Michigan Tech Peace Corps Master’s International Programs. She received her Ph.D.
in anthropology from Michigan State University in 2007. A Fulbright-Hays Doctoral Dissertation Research Abroad grant funded her field work in Niger for this book. In addition to publications on women’s status and development in Niger, she is currently doing historical research on mid- 20th century American evangelical engagements with poverty abroad.
Tricia Redeker Hepner is an Associate Professor of Anthropology and Vice Chair of Africana Studies at the University of Tennessee. She received her Ph.D. from Michigan State University in 2004. Her research foci include forced migration, transnationalism, political conflict, peacebuilding, and human rights activism in the Horn of Africa and its diasporas. She is the author of Soldiers, Martyrs, Traitors, and Exiles: Political Conflict in Eritrea and the Diaspora (Penn Press, 2009), and associate editor of the African Conflict and Peacebuilding Review journal. Her current research, funded by the Wenner-Gren Foundation, examines the transnational legal and political dilemmas of recent asylum seekers and refugees from Eritrea.
Ingunn Ikdahl received a PhD in law for the dissertation Securing Women’s Homes. The Dynamics of Women’s Human Rights at the International Level and in Tanzania, 2010. She is currently postdoctoral scholar at the Department of Public and International Law, University of Oslo, special- izing in women’s rights and human rights perspectives on natural resources law and welfare law.
Tshililo Manenzhe is a PhD student at the Institute for Poverty Land and Agrarian Studies, University of the Western Cape, South Africa.
He currently works as a content advisor to the Portfolio Committee on
Rural Development and Land Reform, Parliament of the Republic of South
Africa. His PhD research focuses on the collaborative business models in
agriculture and their impact on farm labour. He previously worked as a
researcher at PLAAS and as a land rights activist at Nkuzi Development
Association, interested in land and agrarian reform, and rural livelihoods.
He has conducted independent research and collaborated with promi- nent scholars in various research projects in the Limpopo Province.
Knut G Nustad is Associate Professor at the Department of Social Anthropology, University of Oslo. He is educated at the University of Oslo (BA) and Cambridge University (MPhil, PhD) and has conducted research on urban policy, informal processes and development policy, as well as the anthropology of state formation. His latest project examines conflicts around protected areas in South Africa between conservation interests and surrounding communities over the use of natural resources.
This research, in addition to examining specific conflicts, also examines the history of nature conservation, and how ‘nature’ has come to be seen as separate from society and made an object of protection.
Marja Spierenburg is Associate Professor in the Department of Organization Sciences at the VU University in Amsterdam. Since 2010 she is also affiliated to the University of Stellenbosch in South Africa as an Associate Professor. Marja Spierenburg obtained her PhD-degree in anthropology in 2003 at the University of Amsterdam. She coordinates several research projects focusing on the role of the private (profit and non-profit) sector in nature conservation and land reforms in Southern Africa. Her research addresses the growing importance of public-private partnerships in nature conservation and of private wildlife conservation areas, and the impacts of those developments on the land rights and liveli- hoods of local communities. Marja Spierenburg’s publications include Sponsoring nature: Environmental philanthropy for nature conservation (co-authored with Maano Ramutsindela and Harry Wels, published in 2011 by Earthscan) Strangers, Spirits and Land Reforms, Conflicts about Land in Dande, northern Zimbabwe (Brill 2004) and Competing Jurisdictions.
Settling Land Claims in Africa (co-edited with Sandra Evers and Harry
Wels, Brill 2005).
1 Commission p. 2.
ETHNOGRAPHIC AND HISTORICAL PERSPECTIVES ON RIGHTS CLAIMING ON THE AFRICAN CONTINENT
Bill Derman, Anne Hellum and Kristin Bergtora Sandvik
1. Introduction
The international human rights framework has assumed prominence as one of the key global discourses on social justice through which the poor, displaced, women, children, landless and indigenous groups (among others) articulate and advocate claims for the rights to livelihood, equality and identity. Social movements, human rights organizations, legal instruments and judicial mechanisms have been mobilized to seek justice from the perpetrators of rape, torture, and murder; to demand fairness in inheritance of land; to claim the right to clean drinking water;
and to advance multiple other claims. This mobilization has taken on additional significance with the accelerating rate of adoption of interna- tional human rights instruments by most United Nations member states, the growing use of rights-based approaches to socioeconomic develop- ment and the increasing number and size of international, national and local non-governmental human rights and humanitarian organizations.
Whether human rights offer real protection when disadvantaged groups
invoke them at the local level in an attempt to improve their living condi-
tions is a key concern in recent human rights and development research
(De Feyter, Parmentier, Timmerman and Ulrich 2011; Andreassen and
Crawford 2013).One of the most highly profiled international initiatives
setting out to integrate law, poverty elimination and economic develop-
ment is the Commission on the Legal Empowerment of the Poor (CLEP)
(Commission on Legal Empowerment of the Poor: 2008). Seeing poverty
as a result of exclusion, the Commission states that most development
initiatives fail because they “tend to focus on the official economy, the for-
mal legal system and the national rather than the local level”.1 Emphasizing
the need for “measures for the legal empowerment of women, minorities,
2 Commission p. 6.
3 Commission p. 3.
refugees and internally displaced persons, and indigenous peoples,”2 its ambitious goal is to initiate “a process of systemic change through which the poor and excluded become able to use the law, the legal system and legal services to protect and advance their interests as citizens and eco- nomic actors.”3 The Commission’s simplistic outlook on the transforma- tive capacity of human rights combined with critiques of a human rights based approach (Banik 2011) has prompted the editors of this book to pres- ent a collection of ethnographic studies from Sub-Saharan Africa that highlight the complex legal pluralities of claims-making processes from the perspectives of individuals and groups who are using human rights to frame their agendas.
Through ethnographic field work carried out by anthropologists and lawyers, the case studies presented here situate the claiming of human rights in specific geographical, historical and political contexts. The case studies engage with several critical dimensions of contemporary African human rights struggles including land and property, gender equality and legal identity, with a focus on claims-making by groups and individuals that have been subject to injustices and abuses often due to different forms of displacement (Wilson and Mitchell 2006). With the overall focus on claims-making, they describe and analyze situations where the inter- national human rights system has added a new layer to the existing plural- ity of national, customary and religious norms and institutions that in practice inform social and legal relations. Focusing on local communities’
complexities and divided interests, the cases address the ambiguities and tensions affecting the processes whereby human rights have been incor- porated into legislation, social and economic programs, legal advocacy and legal aid initiatives, land reform, development projects, humanitarian assistance or social group mobilization. The overall aim is to come to an understanding of how existing relations of inequality, domination and control are affected by the opportunities offered by emerging law and gov- ernance structures as a plurality of non-state actors enter what previously was considered the sole regulatory domain of the nation state.
The book is organized in three thematic parts, each with its own intro-
duction. Concentrating on land and property reform in South Africa,
Mozambique and Tanzania, the case studies in Part I and Part II situate
rights struggles over access to land or secure tenure in the context of
changing property relations, growing land scarcity and the demand for more effective land use. Land struggles and land rights are central to virtu- ally all debates about how to overcome the poverty that characterizes so many rural areas in Africa. While access to land is not an established inter- national human right, it is essential for the exercise of other rights, among others, the right to housing and livelihood, and women’s rights to equality.
In opposition to market-based policies, intensified privatization and com- modification are human rights-based approaches which view land as cen- tral to livelihoods, to status in society, to identity and in general to what constitutes a dignified life in the contemporary world (Ikdahl et al. 2005).
Land struggles were at the core of anti-colonial struggles and later in the liberation wars of southern Africa. While much land has been regained from the former colonial powers, much has remained in white hands in the large scale commercial farming sector following independence.
However, as Zimbabwe, Namibia and South Africa have attempted land reforms, they have been constrained by international financial institu- tions and donors to opt for market-led ones rather than rights-based reforms. In addition, African states are aiming at unified legal systems, while rural Africa is primarily governed by a plurality of norms and institutions.
In Part II, case studies from South Africa, Tanzania and Niger address how human rights are conceptualized, articulated and struggled for by dif- ferent groups of women. African women have increasingly turned to the international human rights arena for better protection of their rights, including access to and ownership of land, equal inheritance rights, full rights of citizenship and social and economic rights. Contestations over equal rights to resources constitutes an arena in which lawmakers, rights- based development agencies, women’s organizations and individual women navigate a terrain where universal rights embedded in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) interact with state law and customary or religious norms in different social and political contexts.
Human rights are also central for the victims of humanitarian emergen-
cies, who are affected either by large scale displacements caused by repres-
sion, conflict or natural/man-made disasters, or by the more individualized
tragedies caused by the HIV/AIDS epidemic. The quest for legal identity
and for social and cultural membership rights in a community remains
central to the fulfilment of basic rights and lives led in dignity. These rights
require gendering since domestic duties often place women at risk of rape
and other forms of violence. In Part III, case studies from Uganda, Eritrea
and Malawi untangle the transformation of political agency and rights claiming that occurs when individuals become the object of humanitarian
‘interventions’ and when international humanitarian actors become tar- gets of such claims, in addition to, or to the exclusion of, the African state.
In this general introduction, the case studies are situated in the broader context of changing constellations of law and governance shaped by history, power structures and legal pluralism. In section two, a brief over- view is given of how market systems, humanitarian enterprises and state legal systems in recent years have been challenged to incorporate human rights principles to counter growing global inequalities and poverty.
Focusing on the processes whereby human rights principles are translated and delivered through legislation, development programs or humanitar- ian assistance, section three sets the scene for a contextual approach examining how they feed into unequal power relations and varying cul- tural practices which can reinforce existing inequalities or, alternatively, diminish them.
To understand the ambiguities of contemporary African human rights struggles, section four provides a brief introduction to the continuities and discontinuities in human rights discourses and practices in Africa from the colonial era up to the present time. Section five gives an over- view of the slow and uneven process whereby international and regional human rights instruments have been adopted by post-colonial African states. In the light of the long history of Europe’s domination of Africa and the often tense and uneasy fraught relationship with the United States, section six seeks an understanding of the ambivalence and scepticism of many African governments, civic organizations and intellectuals toward the underlying motivations of numerous international actors’ growing human rights initiatives. Towards this end, four sets of African human rights debates are addressed and discussed in the light of the ethnographic case studies. These include the debate about universalism versus relativ- ism and considerations of whose interests are represented in human rights norms and organizations. Related questions are whether the focus on human rights by western governments and NGOs constitutes a way of expanding neo-liberalism, and how the increasing use of human rights in humanitarianism should be understood.
2. The Globalization of Human Rights
While economics-based discourses had dominated international develop-
ment initiatives since the 1950s, the human rights framework began to
4 This effort is associated with Dr. Arjun Sengupta (2005) who occupied the position as Special Rapporteur on the Human Right to Development at the United Nations. While the General Assembly adopted the Right to Development, it was a contentious vote and little headway has been made in its adoption or use.
5 In part this was due to most countries ignoring ‘the right to development.’
6 The HRBA has been adopted in Norwegian, Dutch and English development policies.
The United States government and the World Bank have resisted using HRBA.
gain purchase in development circles in the late 1980s. This led to a renewed and expanded argument for the importance of human rights in development at the United Nations. Emphasizing the link between development, democracy, good governance and rule of law, the good governance matrix, which formerly gave prominence only to core liberal values embedded in the civil and political human rights, was expanded to include socio-economic rights. As part of these considerations, the United Nations attempted a synthetic Right to Development4—an integrated version of social, economic, cultural, civil, and political rights.
Seeking to overcome development strategies which didn’t include women, children and other socially marginalized and vulnerable segments of the population, the human rights based approach to development (HRBA) was adopted by the United Nations in 1986.5 While the right to development itself has been sidelined, the emphases upon the inter- connection among the array of civil, political, social and economic human rights has increased (Andreassen and Marks 2006; Musembi and Cornwall 2004). This trend is reflected in a rapidly growing body of human rights literature dealing with the right to a livelihood without discrimination in terms of land, food and water (Ikdahl et al. 2005;
Eide and Kracht 2009; Langford and Russell 2013; Hellum and Sinding Aasen 2013).
As HRBA was adopted as a guiding framework for states and interna-
tional organizations, a new set of possibilities for social action was raised
linking non-governmental organizations and development ones.6 The
broadening of human rights into these new arenas and the use of socio-
economic rights in addition to civil and political rights produces new con-
testations (Crawford and Andreassen 2013). State parties in most parts of
the world have been reluctant to incorporate social and economic rights
into national law although there are important exceptions (Liebenberg
2010; Viljoen and Louw 2007; Andrews 2008). In spite of state resistance
there is an increasing body of social rights jurisprudence in most countries
which demonstrates how human rights principles are being integrated in
7 The UN humanitarian system comprises six key actors: United Nations High Commission for Refugees (UNHCR), World Food Program (WFP), The United Nations Children’s Fund (UNICEF), Food and Agriculture Organization (FAO), World Health Organization (WHO) and United Nations Development Programme (UNDP), as well as Office for the Coordination of Humanitarian Affairs (OCHA). The core group of large humanitarian INGOs include, in addition to the Red Cross system, CARE, World Vision, Oxfam and Doctors without Borders (Medecins Sans Frontieres).
8 Tracking the Millennium Development Goals (MDGs) has demonstrated that despite some initial success Sub-Saharan Africa lags behind in the overall fulfillment of its goals.
See the annual UN assessment of progress in meeting the MDGs.
national law as people seeking social justice take legal action (Langford 2009, Hellum and Aasen 2013).
In contrast, the outcomes of rights-based humanitarianism have been much less tangible. In the mid-1990s, the burgeoning humanitarian enter- prise found itself in a legitimacy crisis resulting from their inability to pro- tect civilians in Somalia, the former Yugoslavia and Rwanda (Barnett and Finnemore 2004). More general charges of inefficiency, mismanage- ment and waste were levied against the general practices of humanitar- ian organizations, at both the UN and the NGO level.7 As a response, these organizations began to pursue reform through the institutionaliza- tion, standardization and professionalization of practice, by expanding humanitarians’ scope to include long-term development-related objec- tives by emphasizing “humanitarian protection” and engaging much more actively with international human rights. The shift from a needs- based to a rights-based humanitarianism meant that ‘victims’ or ‘benefi- ciaries’ were re-conceptualized as rights-holders, and humanitarian agencies became their advocates. Inspired by the shift to rights-based development described above, the focus was people-centred, empower- ing and anti-charity, and saw political engagement not only as legiti- mate but necessary (Darcy 2004). According to the proponents of rights-based humanitarianism, the coherence between human rights, development and humanitarianism was unproblematic, with rights as the unifying analytical framework for the rapprochement (Sandvik 2010b).
In spite of these ambitious goals of international law and development
policy, the globalization of human rights has not led to a significant
decrease in poverty in Africa.8 There is substantial evidence for a growing
gap between developed and less developed countries, most significantly
in Africa, despite some marked exceptions.
3. From the Global to the Regional and the Local—History, Context and Power
The ethnographic cases in this book demonstrate how human rights dis- courses have spread throughout Africa and have become a critical part of social and political discourse involving governments, development agen- cies, humanitarian organizations, international and national NGOs and individual claimants. Seeing rights struggles as historically, socially, politi- cally and culturally embedded processes, the case studies need to be understood in a historical context where human rights have been invoked by external and internal actors to promote different interests. Human rights principles were initially part of the colonial civilizing mission while later becoming the centrepiece in struggles against slavery, colonialism, racism and the right to self-determination. Today the unfulfilled promises of post-colonial African governments are giving rise to human rights claims coming from actors ranging from women’s organizations, indige- nous groups, refugees, displaced peoples, slum dwellers, and landless peo- ples. By focusing on contestations over material and symbolic resources fashioned in rights language, we seek a situational and contextual under- standing of the complex and ambiguous character of contemporary African human rights struggles. Like Seider and McNeish (2012), our approach privileges women and men’s agency and perceptions which emphasizes the role that structure and long-run historical processes play in shaping constellations of legal pluralities and governance, as well as current prospects for positive change.
Human rights claims are being made against national governments,
national and international development agencies, multinational corpora-
tions, the International Monetary Fund (IMF), the World Trade Organi-
zation (WTO), the United Nations and the World Bank. Located in a variety
of transnational settings, the case studies in this book interrogate the role
of the African nation-state as the primary implementer of international
human rights, while also addressing the roles, responsibilities and privi-
leges of a series of non-state actors. Focusing on human rights claims-
making that occurs within human rights structures, the development
apparatus and the humanitarian enterprise, the authors engage with
human rights discourses and practices as multi-sited and multilayered
social processes. The ongoing transformation of development and human-
itarian polices is taking place in a complex field of legal pluralism where
human rights law, national law and local customs and practices already
co-exist. The case studies are thus set in a wider global terrain where the
9 We do not however, consider corporate and business actors in this volume, nor the World Bank and the IMF. However, there is a growing literature on these, including: Baard Andreassen and Stephen Marks (2010); Sigrun Skogly (2001); Darrow, Mac. 2003.
10 Vernacular is the term used by Sally Engle Merry to mean the local translation and interpretation of a human right, see Merry 2006.
11 Harri Englund (2006) does an effective job of demonstrating how elements of the Malawian middle class have turned the language of human rights to their advantage.
mobility of people, capital, technology, and law has reconfigured the rela- tionship between local, national and transnational domains (Hepner Chapter 13 this volume; Li 2009; Weilmann 2000; Tsing 2004; Ferguson 2006; Nordstrom 2007). Accelerating mobility at all these levels implies that claimants and addressees often operate in multi-sited situations and, as such, have to deal with increasingly complex legal situations (von Benda-Beckmann, von Benda-Beckmann and Griffiths 2005: 1–4).9 The effect this shift, moving from a state-centred notion of governance exclu- sively tied to the national state towards a functional notion of governing activities involving a multiplicity of non-state institutions, has on existing inequalities related to gender, race and class is an important issue (F. and K. von Benda-Beckmann and Eckert 2009: 2).
In the linking of human rights, international development and humani- tarian practice, new pressures and new struggles are emerging. Along with the question “development for whom?” that has always framed debates concerning development, there is the parallel question, “rights for whom?”
Addressing the question of rights for whom, the authors in this book examine processes of exclusion and inclusion with respect to the persons who have the resources and power to obtain the human rights in question.
At the same time, the authors examine the ways in which political and
cultural symbolism and practices, rather than human rights principles,
might achieve greater legitimacy. Through fieldwork we see that deliver-
ing or obtaining human rights is not simply a question of translating
a right into a vernacular.10 Instead, we contend that translations of
human rights are active, innovative and local, thus providing new mean-
ings to rights. This is, as pointed out by Franz and Keebet von Benda-
Beckmann and Anne Griffiths (2009: 3) especially pertinent in plural legal
constellations where different state and non-state actors are “engaged in
contestations over who has the power to generate law and construct its
meaning.” Most importantly, these processes include questions of power,
where translation can be dominated by a relatively powerful group who
use rights for their own narrow purposes.11 Local communities, as well as
women within them, have often been seen as undifferentiated, having
similar interests, and therefore little account has been taken of their complexities and divided interests. To come to grips with the complex struggles of power and resources that shape the relationship between international, national and local norms, the notion of common commu- nity interests requires unpacking to uncover patterns of gender and social differentiation within local communities (Derman, Hellum and Manenzhe chapter 3 and Hellum and Derman chapter 7). In a situation where the relationship between women’s rights or farm workers’ rights under international and national law is contested, a key question is who, within a local community, has the power to define, interpret, implement and enforce law at the multiple levels it operates?
As human rights principles are translated and conveyed through legis-
lation, legal education programs, development programs or humanitarian
assistance, they feed into unequal power relations and varying cultural
practices which can reinforce existing inequalities, or alternatively, dimin-
ish them. The authors in this book consider structural and relational
imbalances of power while at the same time they recognize the impor-
tance of subjects’ own understandings and agency. The case studies dem-
onstrate significant differences in power relations which shape the
achievement of rights. These include the delegitimization of rights talk
among refugees in Uganda (Sandvik chapter 12 ), the denial of rights
claims among National Park inhabitants in Mozambique (Spierenburg
chapter 5), the exclusion of non-claimant farm workers in the land restitu-
tion process in South Africa (Derman, Hellum and Manenzhe chapter 3),
as well as the displacement of the national human rights legislation in
Malawi orphan care by way of international charity and private largesse
(Freidus chapter 14 ). The case studies point to deep-seated structural
inequalities that often are upheld as a result of governmental neglect, but
sometimes also by the benevolent intentions of outsiders (Henquinet
chapter 10). They point to ways in which law reform based on a notion of
women as a homogenous group may result in discrimination between dif-
ferent categories of women (Ikdahl chapter 8).The twists and turns of the
South African land restitution process show how powerful male elites
within the claimant communities benefited from a shift from a social jus-
tice approach to a market model guided by a narrow equal opportunity
approach, where existing gender hierarchies within the community and
the household are regarded as private matters (Hellum and Derman chap-
ter 7). In addition, they demonstrate the potential embedded in interna-
tional, national and local networks that women’s rights lawyers have, as
shown by the case of Tanzanian women’s rights lawyers, who acquired an
economic and professional capacity enabling them to mediate between international, national and local norms in a way that changes established gender norms (Bourdon chapter 9).
4. Continuities and Discontinuities in African Human Rights Discourse To set the stage for the ethnographic cases, we will provide a brief intro- duction to the continuities and discontinuities in human rights discourses and practices in Africa. A contentious issue in African human rights debates is the question of whether or not human rights instruments and struggles are distinctively African, or whether they are of ‘western’ deriva- tion. The crux of this question centres on the legal, political, social and cultural legitimacy of human rights in African contexts; however, we rec- ognize that human rights struggles are not new to Africa.
To understand the ambivalent relationship between African norms and values and human rights principles, colonialism’s impact on the region’s legal development is central, combined with the history of racism in Europe and the United States. Historical studies combining a political economy approach with an actor perspective view the formation of African customary laws in the light of both external and internal social, economic and legal factors. A series of studies have demonstrated how customary law was shaped in the course of complex struggles involving colonial administrators, elder African men and young women and men. In his classic study of how customary law was created in the early phase of colonialism, Martin Chanock describes how complex struggles in which western colonizers, African tribal authorities and African men and women invoked and manipulated notions of western and African law created a new form of law that was neither customary nor western (Chanock 1985).
Studies from South Africa, Zimbabwe, and Zambia show how African women and men from different age and status groups responded variously to the evolving colonial legal system and, despite unequal power relations, manipulated it to serve their own aims and goals (Hay and Wright 1982;
Parpart 1988; Hellum 1999). Women who were married, for example, against their will turned to the colonial courts to have local marriage cus- toms declared as repugnant to natural justice and morality. Barth Rwezaura has described the colonial legal development as a process in which:
…the colonial and post-colonial states had contributed considerably to the
transformation of the traditional social and economic system. This develop-
ment enabled the subordinate members of the society such as sons, daugh-
ters and wives to claim autonomy from the male elders. Yet simultaneously
12 Quoted from Rwezaura in Armstrong et al. 1990.
13 The International Convention on the Elimination of All Forms of Racial Discrimination (1969) was directed at apartheid in South Africa, racial discrimination in the U.S.A., continued colonial rule in Africa, and most recently, at discriminatory policies against the Aborigines by the Australian government. See also, Keck and Sikkink (1998).
14 Burke, ibid. pp. 74–75.
15 Burke op cit. p. 128.
some element of state policy and administrative practices tended to con- serve customs and tradition. (Rwezaura 1990: 17).12
When the Universal Declaration of Human Rights was enacted in 1948,
only four African states were members of the United Nations: Egypt,
Ethiopia, Liberia and apartheid South Africa. The majority of the European
powers that passed the declaration were at the same time denying African
societies under colonial rule their most basic human rights (An-Na’im
2003: 9) while South Africa was denying blacks citizenship rights. Anti-
colonial struggles in the post-World War II era were very much human
rights struggles for self-determination, self-rule, the ending of racism
and national independence. The anti-colonial movements in virtually
all African colonies opted for the state model of governance. In the post-
independence era, African states continued to make contributions to the
development of the international human rights regime and strengthened
the protection of human rights at the level of regional and national law.13
Burke (2010: 128) observes that “The struggle against colonialism and rac-
ism in Africa is reflected in international law’s protection of the right to
self-determination as well as protection against discrimination on the
grounds of sex and race.” A significant contribution to the development of
the human rights system is the right to petition, which was pioneered by
African and Asian states calling for more effective international legal
weapons against apartheid.14 The right to petition embedded in the
Convention on the Elimination of Racial Discrimination (CERD) was the
forerunner of the right to petition in the International Covenant on Civil
and Political Rights (ICCPR). African states were also the driving force
behind the preparation of the draft Convention on Consent and Minimum
Age for Marriage in 1961. While the female UN representative from Togo
argued that the Convention was a means of liberating African women
from “the yoke imposed on them by custom,” the Convention was resisted
by many western states with the argument that such an instrument would
be difficult to implement due to the vast diversity of “cultural and ethno-
logical patterns in various countries.”15 In short, the west raised a cultural
relativist argument to counter an African women’s rights argument.
16 The introduction of human rights into humanitarian law was also driven by the struggle for self-determination, which was finally recognized in common Article 1 of the 1966 International Covenants on human rights. 23 “From this point, IHL has been pro- foundly marked by developments in IHRL). Samuel Moyn (2010), on the other hand, argues that anti-colonialism was not a human rights movement.
17 Basil Davidson (1993) made the strongest argument against Africa’s adopting the European model. By then, however, it was too late.
18 Space here does not permit an exposition of western involvement in coups, including those in Africa. For a recent account of the CIA’s history see Weiner (2007).
The centrepiece of human rights origins in Africa was the struggle against slavery, colonialism, racism and apartheid. The question of free- dom and the fundamental rights to self- determination were part of all African independence movements, as were the multiple promises made by African liberation movements about how democracy and freedoms would replace colonialism.16 The 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples intensified the moral and political pressure on the European colonial powers. The outcome of the initial period of decolonization and restoration of African national sovereignty was, in most instances, the adoption of European- model nation-states and constitutions (An-Na’im, 2003: 9).17 In the south- ern part of the continent, the resistance to independence and majority rule led to longer and more violent struggles which we discuss below. This early and promising period of independence was followed by a series of coups, some internally generated and others with western assistance.
The violent overthrow of democratically elected Patrice Lumumba in the Congo in 1960, orchestrated by Belgium and the United States, followed by the overthrow of President Kwame Nkrumah’s government in 1966 in Ghana, the first nation to regain its independence after World War II, threatened the re-establishment of colonial or neo-colonial rule.18 In southern Africa, the Portuguese were holding onto their colonies of Guinea-Bissau, Angola and Mozambique while white minority rule was the order of the day in Southwest Africa (Namibia), Rhodesia (Zimbabwe) and South Africa, supported to varying degrees by the west. Thus, while there was instability and militarization of many newly independent African states, others were subject to western intervention. This provides an important historical context for understanding Africans’ suspicions concerning the West’s nascent interest in human rights.
The immediate outcome of independence in most African nation
states, as pointed out by An-Na’im, was the transfer of authoritarian power
structures from colonial masters to local elites (2003). The anti-colonial
movements that fought for independence often remained authoritarian
19 Reference is frequently made to Franz Fanon (1969), who warned of the emergence of a new national bourgeoisie which would appropriate the achievement of independence for themselves and ignore the poor and those impoverished by colonialism.
20 From the Charter of Fundamental Social Rights, in SADC, 2003. SADC was formed in 1999, and part of its origins was to promote and protect human rights, democracy and the rule of law.
and became the location of personal power, rarely transforming into par- ticipatory democratic organizations. Military coups or authoritarian gov- ernments became characteristic of large parts of the African continent.
They also did not lead to substantial economic and social growth.19 In response to military rule and authoritarianism, democracy movements emerged in many countries, including opposition parties. While these processes were underway in large areas of the continent, the completion of decolonization took place in former Portuguese Africa and southern Africa. Guinea-Bissau, Angola, Mozambique, Zimbabwe, Namibia, Eritrea, apartheid South Africa and, most recently, South Sudan all gained their independence. As they did so, liberation movements were transformed into political parties and formed the new governments of these states.
Having benefited from international solidarity movements and human rights support through the United Nations and other international organi- zations, this made them, at least initially, far more conscious of interna- tional human rights than the earlier decolonization struggles. In southern Africa, the recognition of human rights can be found in the SADC Social Charter, for example, which begins with the following:
1. This Charter embodies the recognition by governments, employers and workers in the Region of the universality and indivisibility of basic human rights proclaimed in instruments such as the United Nations Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights, the Constitution of the ILO, the Philadelphia Declaration and other relevant international instruments.
2. Member States undertake to observe the basic rights referred to in this Charter.20
These are clearly statements of ideals which to varying degrees shape
practices. Despite many varied social and economic experiments ranging
from socialism in Ghana, Guinea, and Tanzania to Zambian humanism,
the 1980s brought a broad disillusionment with African governments, and
the western focus turned to markets, formal elections, civil society and
political democracy. The 1980s saw the re-establishment of democratic
regimes in some nations coupled with structural adjustment programs that
attempted to force most African nations into a single economic mould.
21 We are aware of the large differences between nations. The U.S. ignored CEDAW while Norway re-oriented its development assistance to expand its programs for women with a focus on expanding the sphere of women’s rights. By the west, we mean essentially the former colonial powers joined by the United States.
In this period the West shifted its strategy to promotion of export econo- mies, expansion of the market, and democratization. Good governance was now added to the set of conditionalities that African states had to adopt to meet the strictures of development assistance and structural adjustment programs.21 The major institutions tasked with formulating and implementing the instruments for economic policies—the World Bank, the World Trade Organization (WTO) and the International Mone- tary Fund (IMF)—seemed to be exempt from international human rights leading to a critique that the West supported only political and civil human rights and not economic and social ones. The disjuncture between the multinational economic organizations and the rights-based United Nations ones continues to plague a broader adoption of socio-economic human rights as well as civil and political ones (Skogly 2001).
5. Human Rights in Regional and Domestic African Law
Once freed from colonial rule, all African states adopted the Universal Declaration of Human Rights as they entered the United Nations. They also participated in and voted for the broad set of international human rights instruments as they were debated and voted upon in the United Nations. Most African nations signed and ratified international human rights instruments like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights from 1966 (ICCPR), the International Covenant on Social, Economic and Cultural Rights of 1966 (ICSECR), the Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW) and the Convention on the Rights of the Child of 1989 (CRC).
Africa is one of the three regions in the world today that has its own
supranational system for the protection of human rights. The African
Charter on Human and Peoples’ Rights adopted by the Organization of
African Unity in 1981 came into force in 1986 but with minimal enforce-
ment mechanisms. It included civil, political, social, cultural and eco-
nomic rights and recognized the right to environment and the right to
development. Protecting both group rights and individual rights, it con-
tributed to longstanding debates concerning what the relationship should
22 By this we mean the National Front for the Liberation of Mozambique (FRELIMO), the Popular Movement for the Liberation of Angola (MPLA), Party for the Independence of Guinea Bissau and Cape Verde (PAIGC,) South West Africa Peoples’ Organization (SWAPO), African National Congress (ANC), Zimbabwe African National Union (ZANU) and Eritrean Peoples’ Liberation Front (EPLF). There were many other liberation move- ments and parties, but these are the victorious ones.
23 the Vienna conference was only the second global conference to focus exclusively on human rights, with the first having been the International Conference on Human Rights held in Teheran, Iran, 1968 to mark the twentieth anniversary of the Universal Declaration of Human Rights.
24 Vienna Declaration and Programme of Action. World Conference on Human Rights, Vienna, 14–25 June 1993, para 18.
be between the state’s obligation to protect women against sex discrimi- nation on the one hand, and to protect the family as the custodian of cus- tom and culture on the other. It was written at the dawn of Zimbabwe’s independence; just a few years after Mozambique, Angola and Guinea- Bissau gained independence in 1975, while Namibia and South Africa were still under minority racist regimes. To the disappointment of African women in independent Africa, the liberation movements22 that were so keen to portray women as fighters and as equal participants in the libera- tion struggles often relegated them to positions of inequality after national independence had been achieved (Nhongo-Simbanegavi, 2000).
These reversals led to strong women’s rights movements linked to inter- national feminist movements for equality before the law, access to land and rights to property. It was CEDAW, with its application in both the pri- vate and public spheres, along with the globalization of women’s rights organizations, which precipitated a major shift in the priorities of govern- ments and human rights organizations in Africa as elsewhere in the world.
The World Conference on Human Rights in Vienna (1993)23 and the Fourth World Conference on Women in Beijing (1995) constituted a major break- through for claiming “women’s rights are human rights.” The Vienna Declaration of Human Rights (1993) and the Beijing Plan of Action (1995) stated that:
The equal status of women and the human rights of women should be inte- grated into the mainstream of United Nations system-wide activity. These issues should be egularly and systematically addressed throughout relevant United Nations bodies and mechanisms.24
Facilitating global discussions about which elements of women’s
rights were western, which were not and which transcended national and
continental histories, these World Conferences brought about new forms
of cooperation and understandings. For African Women’s Rights NGOs,
25 The Beijing Declaration and Platform for Action, which was the result of the Fourth World Conference on Women in 1995.
26 Article 17. Right to Positive Cultural Context. 1. Women shall have the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies.
these global events became stepping stones for basic claims such as equal property rights. All Sub-Saharan African states, with the exception of Mauritania, accepted without reservation to:
Undertake legislative and administrative reforms to give women full and equal access to economic resources, including the right to inheritance and to ownership of land and other property, credit, natural resources and appropriate technologies.25
In response to the new wave of struggles for equality and human rights in 21st-century Africa, the African Charter was followed up by the African Charter of Rights and Welfare of the Child of 1999. Where the African Charter was weak on women’s rights, these rights were formulated and included in the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa of 2005 (the AfPRW). The Protocol to the African Charter on the Rights of Women was prompted by the grow- ing body of women’s rights NGOs’ emphasizing that norms, expectations and resources deriving from membership in a family, a clan, an ethnic, religious or political group often comes into conflict with women’s rights and freedoms as individual citizens. The Protocol, as the first amended human rights instrument, states that women have the right to a positive culture and places an obligation on states to change gender stereotypes embedded in cultural and religious beliefs (Banda 2005). 26
These international and regional human rights instruments have clearly
made their mark on the development of most African legal systems. Yet
there is considerable variation in the degree of protection offered by the
constitutions and laws of those African states that have ratified existing
international and regional human rights treaties. Among the African
countries that are examined in this book, the most extensive human rights
protection is offered by the South African Constitution, which encom-
passes the whole catalogue of civil, political, social and economic rights
and recognizes customary law only in as far as it is compatible with
the principle of gender equality. While rendering protection of civil and
political rights, the Tanzanian, Mozambican, Malawian, and Zimbabwean
constitutions do not provide any significant protection of social and eco-
nomic rights. Whereas the principle of gender equality is protected in the
27 The rise of U.S.-based human rights organizations which became critically important in Africa in the 1980s were Freedom House, which assessed the state of freedom of all inde- pendent states, Amnesty International, Human Rights Watch, and then Africa Watch. All of these focused for most of their existence on political and civil rights and not on the other rights.
Mozambican and Tanzanian constitutions the equality principle’s status in relation to customary law remains contested. The Zimbabwean consti- tution has a clawback clause stipulating that customary law in the field of family and inheritance law takes precedence in the event of conflict with customary law. In another variation, the Eritrean constitution protects the whole range of civil and political freedoms as well as social, economic, and gender equality but has remained unimplemented since its initial drafting in 1997.
Pointing to the disjuncture between theory and practice in African human rights protection, African human rights scholars emphasize the need for both formal and informal institutions to have the capacity to make power holders accountable to their duty to respect, protect and pro- mote the rights of citizens (An-Na’im 2003, 27; Daniel R. Mekonnen 2009).
In a socio-economic context where recourse to courts and professional lawyers is costly, the existence of an independent judiciary and a legal pro- fession is clearly not enough to make law accessible to the poor and mar- ginalized majorities. The past two decades have seen a growth in numbers and activity of non-governmental human rights organizations in Sub- Saharan Africa (Zeleza and McConnaughay 2004), but not without contro- versy. The growth in African human rights NGOs reflects the emphasis on human rights in international development policy, with many NGOs dependent on foreign sources of funding and technical assistance. The degree to which the agendas and strategies of these organizations are externally dictated or internally generated will be discussed in the chap- ters in this book.27 In light of the complex history through which African nations became independent and the new western emphasis upon human rights as part and parcel of development cooperation, the nature of human rights is still a highly contested subject in Africa. We now turn to these debates.
6. African Human Rights Debates
Despite the widespread state acceptance expressed through ratification
and domestication of international and regional instruments, human
28 And of course these complex relationships have already been altered by the rise of Asian powers including China, India and now Indonesia. The BRICS (Brazil, Russia, India, China and sometimes including South Africa) have substantial economic and political power if and when they act together.
rights claims are often rejected by African states with reference to princi- ples of non interference, national sovereignty and the incommensurabil- ity between human rights instruments and African cultural practices. This form of human rights resistance stands in contrast to earlier appeals for international boycotts and international solidarity that were key for the liberation movements in Angola, Eritrea, Guinea-Bissau, Mozambique, Namibia, Angola, South Africa and Zimbabwe. Given the long history of domination of Africa by Europe and the fraught relationship with the United States stemming from slavery and exacerbated by highly selective engagement in African conflicts, it is not surprising that many African gov- ernments, civic organizations and intellectuals express ambivalence and scepticism toward the underlying motivations of numerous international actors’ growing human rights initiatives.28
The first set of African human rights debates addressed in this introduc- tion focus on the issue of universalism versus relativism. Are human rights simply the articulation of the laws and perspectives of one part of the world? The second set of debates centre on the political, legal and social legitimacy and relevance of human rights as they are currently formu- lated. Are their current expressions and organizational forms simply west- ern templates and transplants requiring substantial change in African contexts? The third set of debates is linked to the second concern—whose interests are represented in human rights norms and organizations? In particular, is the focus upon human rights by western governments and NGOs a sophisticated way of expanding neoliberalism? Are human rights discourses and organizations being used to further the aims of the growth and development models designed by northern nations, and particularly the United States? The fourth set of debates revolves around the appropri- ate understanding and use of human rights-based humanitarianism in African contexts especially given the number and severity of African humanitarian crises.
The First Debate: From Cultural Relativism Versus Universalism to Human Rights in Context
The universalist versus relativist debate has its origin in the initial anthro-
pological critique of the UDHR. In 1947, the American Anthropological
29 The anthropological critique focused, for example, on the existence of slavery along with ‘the rights of man’ or continued colonization and the loss of political autonomy. Thus, unless the UDHR was extended to all peoples and cultures in their own traditions, it was too biased in favor of the U.S. and Europe.
