Stretching a Human Rights Approach in Search of Social Justice

By Remko Berkhout and Ute Seela. First published in DevISSues Vol. 13, No. 1 May 2011

Tags: Uganda , South Africa , India , Civil Society Building , Promoting Pluralism

Rights based strategies for obtaining social justice tend to focus on claiming legal rights at the level of the nation state. Drawing on findings from the Hivos knowledge programme in India, South Africa and Uganda, we argue that such a ‘purist’ rights based approach may overlook the potential of ´culture´ as a complementary source of inspiration for civic action.

Since the 1950s, a human rights revolution has swept the globe, encompassing historic developments such as the Universal Declaration of Human Rights, international covenants on various basic rights and the emergence of national and international enforcement mechanisms (Handmaker, 2009: 26-28). Data from global rights watchdogs such as Freedom House suggests that the gains have been significant. At the same time, human rights violations persist, even in countries with progressive rights frameworks. Zooming in on the role of NGOs in the development sector, we argue that this mixed record points at serious limitations of a ‘purist’ human rights based approach to promote social justice.

NGOs have been key human rights revolutionaries, acting as global ambassadors for human rights, translators of international rights into local frameworks and watchdogs to ensure implementation. Their prime target has been the state which – as a member of the international community – is anchored in a system of rights and corresponding obligations established by international law. This approach emphasizes the normative responsibility of the nation state, yet it overlooks an often different reality.

Firstly, the state may not be neutral in favour of the ´rule of law´. Public debate about communal violence and secularism in India regularly points at the indecisive response of the Indian state, which is said to act in favour of the Hindu majority (Kakarala, 2010). The state – albeit labelled as if it was an abstract entity – equals the collective behaviour of a government (and its bureaucracy), parliament and judiciary. Although the Indian constitution presents a very comprehensive minority rights protection framework, the law-making process in parliament is based on - inherently democratic - majority rule. In the process of religious polarization since the 1990s and the rise of right wing Hindu parties, Parliament and government (both at regional and national level) have become vulnerable to identity politics, favouring mostly Hindutva interests. More generally, one could say that when faced with competing rights claims, law making and implementation tend to be subjected to identity politics, negotiation of interests and political priority.

Secondly, getting a state to act, through confrontational or cooperative action, can be a lengthy, costly and complex process beyond the means, capacity and connections of most rights holders. Recent studies by Dawson (2010) and Bond et al. (2010) illustrate that this can lead to uncivic strategies such as violent community protest with outbursts of xenophobia and destruction of public infrastructure.

Thirdly, rights may be violated in practice while nothing is wrong with the law. In South Africa, for example, widespread sexual violence and discrimination of Lesbian, Gay, Bisexual and Transgender (LGBT) groups persists despite progressive legislation (MRC, 2009). Community norms, values and practices can operate on a fundamentally different logic than universal human rights.

These three sets of limitations point at a critical blind spot in the theory of change underpinning civic action for social justice, which may partly explain the NGO-fatigue in different countries. Civic action in the form of donor-driven and urban-biased NGO projects is increasingly judged to be ineffective and out of touch (Dütting & Sogge, 2010: 2). An element here may be the insistence of the human rights approach based on a Western moral framework which tends to view culture and tradition as backward or ‘savage’ phenomena, invariably opposed to the notion of rights as modernity (Mutua, 2001).

Furthermore, a ‘purist’ rights-based approach also tends to relate all socio-cultural reform to legal reform (Kakrarala, 2010: 25). This reductionism creates a certain tunnel vision as to the possible solutions for addressing injustices. It furthermore ignores the reality of many communities which live in mixed legal spaces where both statutory law and traditional practice regulate matters of conflict and justice. In other words, where citizens relate strongly to their local, ethnic or religious identity, they act in a space which may not be the nation state but the community, which follows competing ethical principles, rights and responsibilities (CCFU, 2010: 3).

A case in point, as analysed by the Cross-Cultural Foundation of Uganda (CCFU, 2010: 12-22), is the issue of land ownership. CCFU describes how community governance, culture and the state interplay when it comes to accessing land in Uganda. The traditional system of land tenure still prevails in most of the country. Land is owned by families and passed on from generation to generation without official administration or formal regulation. The system used to protect women. For example, upon the death of her husband, the widow would take over the management of the family land. Recently, however, the idea of private ownership by an individual and official registration has taken root. The study by CCFU provides examples in which male relatives have grabbed and registered the land of divorced or widowed women claiming that women do not own land. The modern idea of individual rights and regulation in these cases has resulted in a loss of rights and dignity for women. In addressing this issue, the study provides examples of how customary land tenure can be strengthened by documenting the rights and responsibilities within this traditional system. Rights and culture can merge, the study shows.

What can we conclude from this? We believe that a rights based approach that brings culture back in to the framing of strategies offers alternative avenues for civic action and invites academics to explore mixes of traditional and modern mechanisms for social justice.

Cultural relativism – the argument that human rights may not be universal but that culture and tradition determine how communities perceive rights and obligations – is not new and has been subject to serious counter-critique. But the debate is far from over. Paraphrazing Amartya Sen (2010): If we acknowledge that there are competing principles of justice, isn’t it better to engage with those differing perspectives on how to repair the injustices in which we live rather than building castles in the sky?

Living in the 2.0 era where information and knowledge travel instantly and impact social and political developments elsewhere, a change of tone will probably be more than a pastime for intellectuals. By breaking the culture vs. rights dichotomy, the global public debate may receive a much needed impetus to providing space for those who consider themselves deeply rooted in culture or religion yet supportive to values of human dignity.

 

Bibliopgraphy

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Cross Cultural Foundation of Uganda (2010) ‘Culture in Governance, does it work? Research report. Accessed on 28-01-2011 from Http://www.hivos.net/Hivos-Knowledge-Programme/Themes/Promoting-Pluralism/News/Legal-pluralism-in-Uganda-traditional-and-modern-conflict-resolution-mechanisms.

Dawson, M. (2010) ‘Resistance and Repression: policing protest in Post Apartheid South Africa’ in Berkhout, R. and J. Handmaker (eds.) Mobilizing Social Justice in South Africa, perspectives from researchers and practitioners. Pretoria: Pretoria University Law Press, pp.101-128.

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Medical Research Council of South Africa (2009). Preventing Rape and Violence in South Africa: Call for Leadership in A New Agenda For Action. Accessed on 31-01-2011 from: http://www.mrc.ac.za/gender/reports.htm

Mutua, M. (2001), Introduction to ‘Savages, Victims, and Saviors: the Metaphor of Human Rights’, 42 Harvard International Law Journal, pp. 201-209.

Sen, A. (2010) The Idea of Justice. Boston: Harvard University Press.

Sogge, D. And Dütting (2010) ‘The art of framing’. Accessed on 28-01-2011 from: http://www.thebrokeronline.eu/en/Magazine/articles/The-art-of-framing.