When the Universal Declaration of Human Rights (UDHR, the Declaration) was passed on the 10th of December 1948 as a promising ‘international Magna Carta [.pdf] for all humanity’, Africa, with the exception of Ethiopia and Liberia, was under the heavy shackle of colonialism. Ergo, in the whole production process of the UDHR, of all the continents, the African continent and by extension the so-called ‘African values’ were the least represented.
The two independent nations, Ethiopia and Liberia, along with the semi-autonomous Egypt joined the 48 other nations to sign the Declaration as a guiding light to the world that had just started to recuperate from the ravages of war. Although a part of the process, for the obvious reason, the apartheid regime of The Union of South Africa abstained from adopting the Declaration. That same country whose prosecutors later frivolously presented possession of the Universal Declaration by young South African freedom fighters as inculpatory evidence to a court of law.
Yet, the majority of African countries signed the Declaration in the post-independence period with the hope that the values enshrined under it represents their national values and commit themselves to that end. However, perennial queries and criticisms over the values enshrined under the Declaration vis-a-vis overlooked values understood as the essential expressions of national cultures always afloat and abound.
Easily adopted, hardly adapted
Signing international instruments comes with its own baggage. When nations associate themselves with the international community by a way of signing treaties or declarations, tacitly they are giving their full consent to abide by the values embedded in the instruments, as per the Vienna Convention on the Law of Treaties. This assertion is glaring and truer for the signatories of the UDHR, a document loaded with various types of universal human values that arguably transcend borders and cultures.
In the first twelve years of the UDHR, prior to the 1960 “Year of Africa”, the declaration, beyond its spirit, had a negligible impact on the legal framework and behavior of African States. Ethiopia, one of the two early African signatory states of the UDHR, is one major exception since it adopted the provisions of the document in its national law. Moreover, a few years later, in 1955, in order to abide by the spirit and values of the Declaration, it amended its old constitution by including various types of rights from the UDHR itself. However, beginning from 1960, the year famously dubbed as the ‘Year of Africa’, newly independent nations flock to sign the UDHR and many of them eventually crafted right-oriented constitutions which were in one or other ways descended from the UDHR.
Currently, The UDHR, the most translated document in the world, is translated — by the author's count — from the Adja tongue of the Aja people in Southern Benin to the Kaonde of Zambia into 80 African indigenous languages, hence, its universal spirit reaches to every corner of the African continent.
Among the many steps African nations took to realize the aspirations of the UDHR, domestication of its provisions was the principal one. In this regard, primarily, various nations adopted the rights and reciprocal duties provided under the Declaration through their constitutions, implicitly and explicitly.
Among those who recognized the principles of the declaration explicitly, the Mauritanian constitution in its preambulatory provision states, “[t]he People of Mauritania [...] proclaims, solemnly, […] to the principles of democracy as they have been defined by the Universal Declaration of the Rights of Man of 10 December 1948”.
Likewise, the recently revised 1992 constitution of the Eastern African small nation, Djibouti, provided that, “[t]he Djiboutian People solemnly proclaim their attachment to the principles of Democracy and of the Rights of Man as they are defined by the Universal Declaration of the Rights of Man”. Similarly, the constitution of the island of Comoros declares, “The Comorian people solemnly affirm their will […] to emphasize their commitment to the principles and fundamental rights defined by […] the Universal Declaration of Human Rights".
Cognizant of the Declaration’s monumental status, Togo in its part, in its 1992 constitution provided that, “[w]e, the Togolese people, placing ourselves under the protection of God, convinced that such a State can only be founded on political pluralism, the principles of Democracy and the protection of the Rights of Man such as are defined by [...] the Universal Declaration of the Rights of Man of 1948”.
Ethiopia, Mozambique, and Tanzania, for their part, constitutionally recognized the primacy of the principles of the Declaration over their national laws and norms. Cameroon and Burkina Faso are other African nations that explicitly named the UDHR in their constitution as a guiding light of their aspirations. Besides such various explicit recognitions, we can hardly find an African nation that excludes the provisions of the Declaration from its constitutional framework, largely incorporated as a matter of bill of rights.
Nonetheless, does this constitutional adoption midwife a norm that the UDHR aspires to create? Or in other terms, are those African nations, who unprecedentedly adopt the principles and provisions of the Declaration as part and parcel of their constitution, able to adapt themselves with its norms? A mere observation of the continent’s human rights records suggests an emphatic no.
Here is where scholars and statesmen alike intervene to excuse the abysmal human rights violations in the continent by making reference to the whole notion of human rights in general, and the individualistic approach of the Universal Declaration, an alien conception that ill-suited Africa. This excusal subsequently results in gross disregard and violation of the human rights’ framework. Basically, detractors of the provisions and norms of the UDHR vis-a-vis ‘African values’ pitch three-pronged arguments apropos of representation, values, and adequacy. A clear understanding of the current state of human rights on the continent requires an overview of these three strands of arguments concomitant with rebuttal imperatives.
The purported ‘congenital anomalies’ of the Declaration
The first strand of the negative appraisal of the Declaration in the African context goes way back to its very conception. Critics forward the perennial debate over the mysterious drafting process of the Declaration by naming Africa as the primary victim of the dubious process. As a matter of fact, in 1948, almost all the nations in modern Africa — save a handful of them which were part of the original effort — were under colonial rule and self-evidently there was no chance for these colonies to have a say, on any of the principles and the provisions of the Declaration. Thusly, detractors argue, the Declaration suffers from an incurable congenital anomaly, and is not the universal and ultimate expression of every global community it claims to be, since Africans were not heard upon its conception.
Among many, Abdul G. Koroma, one of the few Africans serving judges at the International Court of Justice opines that, “one can only assume that if more African States had been present during the drafting of the Universal Declaration, they would have influenced the drafting in a similar direction” as they craft the African Charter on Humans and People’s Rights. Critics further argue that assuming those few African nations who were part of the process as a representative of the continent's will is a mere act of tokenism, which has little or no meaning in practice.
This strand of the problem borders deepities. On one reading, it’s true that the majority of African countries were not part of the drafting process; however, this mere fact is trivial and unnecessary. On another reading, it misstates the very fact that over two-thirds of the first signatory states of the Declaration were non-western countries who share the cause and concerns of many African nations.
Regarding the second reading, Susan Waltz, in her myth-busting article, dismissed this authorship disclaimer as, “the Universal Declaration was crafted not by one or two pairs of hands, and certainly not solely by Western hands, but is rather the product of a global co-operative effort and is thus the inheritance of all people everywhere." Beyond the falsity and triviality of the ‘birth-defect’ criticism of the Declaration, it further stresses a problem of overlooking the substance of the UDHR whilst focusing on its mischaracterized origin story.
The Individualism-Mutualism Conundrum
One of the perennial debates over the UDHR invokes values; those very values the Declaration attempts to amplify. On the one hand, based on the embedded values, the Declaration is labeled as: illegitimate and western, oppressive, and alien. On the other hand, those who celebrate those values praise it in a universalizing lexicon, as a liberator of the individual, ‘a global testament of humanity’, and ‘one of the highest expressions of the human conscience’.
From the African context, the debate over the values of the Universal Declaration largely focused on the question of primacy. Particularly, it oscillates between the parallel interests of the individual and the communal. As a staunch defender of the individual, Eleanor Roosevelt, ‘the mover and shaker of the entire [UDHR] project’, once asserted that, “remember always that you not only have the right to be an individual, you have an obligation to be one”. The individualist orientation of the Declaration stems from such thoughts that give preeminence to the right of individuals over corollary communal responsibilities. On the verso, those who are critical of this orientation loath the Declaration and its individualistic values as a pariah notion to some communities which stands in polar opposite with ‘African values’, which are sweepingly wrapped in the mantle of collectivism.
Both camps of the debate give little credence to each other's ideas and eventually peripheralized the grey median, which cut through the polarized arguments. Despite its focus on individual rights, the Declaration itself invokes esprit de fraternité as a guiding principle. Furthermore, although adequately, the Universal document accepts the adjacent responsibility of individuals to their communities. Rather, in a spinning-world of thousands of cultural communities, the cosmopolite approach of the Declaration is an indigenous approach of affirming the fact that none better express universal fraternity than individual humanness. Those communal values, which communitarians assert, can mold individual persons without compromising those rights enshrined in the UDHR. That was the working approach adopted by the drafters of the African Charter on Human and Peoples’ Rights [.pdf]. With no single contradiction with the body and spirit of the Universal Declaration, the drafters managed to craft a human and peoples’ rights charter.
Umbra and penumbra rights
The UDHR, the parent document of the current human rights discourse, as an aspiration attempted to set a gold standard that communities and movements across the political spectrum can communicate to each other. In this attempt to set a universal human rights lingua franca, however, various interest groups raised questions of overshadowed and subdued human rights dialects. The question over these totally neglected rights or what I prefer to call umbra rights and inadequately recognized rights (they are often referred to as penumbra rights [.pdf], as popularized by Justice William O. Douglas of the United States) is the third strand of the argument contra the universality of the Declaration.
To distill the debate to the African context, the argument against the UDHR in this regard is that, because of its over-emphasis on negative rights, it relegated positive rights to a derivative status, and worst, it completely shaded solidarity rights, which are seen as the pillars of African communities. To put in Vašák’s categorization, the Declaration expansively deals with first-generation human rights while it gives little attention to second-generation human rights and is totally silent on third-generation human rights, whereas the latter two have a larger significance for many in Africa and the larger Global South. Inter alia, the right to development, the right to live in a clean environment, the recognition of the family as a foundational keystone of society, and reciprocal legal duties of individuals to their community are the foremost rights and adjacent duties put forward in this debate.
Like that of the two previous strands, this element of critique also overlooked the outreaches of the Declaration, and thus lacks clarity. The UDHR in no way claimed to be exhaustive. Nonetheless, among the 400 international human rights that people have in many countries, the vast majorities of them are either derived from the Universal Declaration or derivatives of those widely-written rights in it. Additionally, the Declaration, a soft law in its nature, doesn’t limit efforts by regional blocks and sovereign states to develop their own expanded version of a bill of rights, as it is proved in practice, if they are in line with the basic tenets of it.
Generally, at the mark of septuagennial anniversary of the Universal Declaration of Human Rights, like the rest of the world, Africa has a lot to reckon with in its living legacy. A legacy mainly marked by the adoption of the universal principles of the Declaration into the supreme law of sovereign African states, on a scale that is unprecedented anywhere else. Yet, the continent spectacularly failed to develop a norm befitting of its legal commitments. Hence, instead of lambasting the Universal Declaration as an alien document, a content-focused critical engagement with the principles of the Declaration is a task long overdue. When there is a value difference, striking an overlapping consensus with other value groups is another monumental task left for scholars and political figures in the continent. However, turning back on the values and principles of the UDHR, especially at this critical juncture, in which conversation about a post-human rights world is ensuing, is a betrayal of the aspirations of continents and eventually self-defeating.
About the author
Zelalem Kibret is a lawyer and an O'Brien Fellow in Residence at the Centre for Human Rights and Legal Pluralism.
His research focused on interdisciplinary subjects including intergovernmental relationship, jurisprudence, and popular movements in Africa. Besides, he is a blogger and co-founding member of the Zone Nine blogging collective.