Violence against women is still prevalent in many African countries. They continue to be discriminated, marginalized and subjected to harmful traditional practices which are embedded in the social structure since time immemorial. Most of the time an attempt to prosecute perpetrators of these practices would fail mainly because they are considered as the conservator of cultural values and traditions of the community. An effort of outlawing such discriminatory and harmful practices has also been equated with submission to neocolonial attitude or failure to consider cultural sensitivities of the African society. In its extreme form, such line of debate is often based on the premise that culture and tradition should be posited at the crux given that they are the sole source of validity for any global moral order with respect to human rights. Proponents of universalism, on the other hand, argue that “the contents of human rights are universal and apply to every person irrespective of culture.”In this blog post, I will explore and analyze how and to what extent the African human right system attempts to accommodate both the doctrine of universality and cultural relativity in the context of African women’s rights.
The Cultural Relativism/ Universalism Dichotomy
It is not rare to hear from some African scholar that the notion of human right is a purely Western construct which does not consider African communitarian disposition. Even the Universal Declaration of Human Rights(UDHR), which has attained the status of Customary international law, was never been backlash-free precisely because of the very limited participation of African countries in the drafting and deliberation process. As a matter fact, these adverse reactions cannot be lightly dismissed since African values are poorly represented in the declaration and most, if not all, African countries were under Western colonial power during the formation of UDHR. However, this could not be the ground to question the validity and significance of human right standards, neither can this be the reason to detract their universal enforceability. For Howard and Donnelly, however, ‘a particular type of liberal society’ is sinequa non for effective implementation of ‘modern’ human rights. Communitarian societies, they argued, are antithetical to the implementation and maintenance of human rights, because such social arrangement denies, among others, the autonomy of an individual and the irreducible moral equality of all persons. Matua, on the other hand, contends that such an attempt to create“hierarchy of cultures” does not adhere to human right doctrine of equality, diversity and difference.
For strong Universalists such as Howard-Hassmann, human rights should be the only standards by which we can weigh the validity of certain cultural norms. It follows that any culture which is not compatible with human rights standards ought to be cast aside. Less radical universalist like Stewart endorsed an evolutionary approach that allows cultures to evolve and change with time. On the opposite side of the spectrum, strong cultural relativist claims that “all culture and value systems are equally valid. Consequently, the moral codes of each society ought to be principal source of validity for universal human rights. In the same vein, relativist alleged that culture should take precedence over any other collective international moral judgments.
From the critical point of view, while universalism is perceived by some scholars as a manifestation of western imperialism, an attempt of homogenization and oblivious to genuine cultural nuances, there is also a concern that the arguments of cultural relativism are open to abuse by fundamentalists, economic and political elites (who are already in the position of privilege)and authoritarian governments. Because culture can be misconstrued as a justification to avoid renegotiation of well-established patriarchal social structure and can be brought to bear as a tactic to sustain the existing power relation. Despite these debates, it is self-evident that failure to consider different cultural circumstances in the promotion and protection of international human rights would result in a lack of legitimacy and acceptability. Notwithstanding, as Faulk rightly pointed out, hesitation to look different cultural norms through the lance of international human right standards would also result in “a regressive disposition towards the retention of cruel, brutal, and exploitative aspects of religious and cultural tradition”
Women’s Rights and recognition of culture and tradition in the ACHPR
African women have broken through multiple layers of alienation and repressions. The pervasiveness of discriminatory traditions and harmful traditional practices such as Female Genital Mutilation, polygamy, honor killing, marital rape and such like exposed millions of African women to grave human right violations and put them in disadvantaged positions for centuries. Cognizant of this fact, Article 2 the African Charter on Human and Peoples’ Right (ACHPR) proclaimed that the enjoyment of rights provided in the charter shall not be discriminatory based on, inter alia sex. In the same token, Article 18(3) of the Charter impose an obligation on signatory states to “ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.” However, by virtue of Art. 17 of the same Charter member state are also duty bound to “protect and promote cultural and traditional values recognized by the community” In addition, Article 29 (7) the African Charter imposes an obligation on every individual to “preserve and strengthen positive cultural values of Africa.” Even though, the reference which has been made to international instruments in Article 18 appears to be laudable, it can also be argued that equal recognition of cultural and traditional value is capable of legitimizing harmful and discriminatory practices that would be an impediment to the full enjoyment of women’s rights. It is also worth to mention that the word positive in Article 29 demonstrates that the recognition and promotion of African cultural values are warranted so long as these deeds are not antagonistic to the rights of women. Yet again, while the Charter is clear and straightforward with regard to protection and promotion of cultural rights, the issue of Gender equality is not explicitly addressed. Indeed, the main criticism regarding the interplay between culture and women’s human right in the framework of ACHPR is the latter’s failure to safeguard women’s right independently rather than conflating within the context of family. The fact that their right is situated in an article which deals with the rights of the child, the aged and disabled reaffirm the long-held traditional perception of women’s subordination. Understandably, such criticism of the Charter for its failure to emancipating women from the context of family stems from the concern that the structure of traditional family in Africa depicts women as inferior.
Turning back to the central query of this blog post, despite its recognition of nondiscrimination, in a nutshell, I believe that the Charter overtly inclined to the promotion and protection of culture and traditions than the issue of gender justice and substantive equality of women. In that respect, the Charter has failed to reconcile universally recognized human rights of women and cultural rights of the community as its commitment to gender equality is much less than the emphasis that it gives to culture. Nevertheless, as it will be discussed in the next section, it would be a mistake to assume that culture and women’s human right are always mutually exclusive or inevitably at odds.
Culture and The Maputo Protocol
Despite its considerable contribution in setting global standards of women’s right, the Convention on the Elimination on All Forms of Discrimination Against Women (‘CEDAW’) has certain inadequacies, especially for African women. One of the limitations of the Convention is its cultural insensitiveness precisely because of the commonly held understanding that culture and women’s human right are always uncompromisable as the former is viewed as a barrier to realization and full enjoyment of the latter. The underlying purpose of Maputo Protocol is to rebut such perception by contextualizing the global standards to African local reality through internal dialogue and reform. The protocol, which is ratified by many African countries, is pioneering and transformative in many aspects. Apart from its comprehensive approach, the protocol is also known to be distinct in affording women’s right to peace, inheritance and abortion. Its comprehensiveness goes beyond the ACHPR and CEDAW in addressing the issue of women with HIV/AIDS, women in armed conflicts, elderly women and widows’ rights. Unlike CEDAW, the protocol does not face any difficulty in terms of legitimacy and creditability as it was initiated and drafted by African women themselves. It should, however, be noted that the Protocol does not escape from criticism for its “lack of consistency in the language and uncertainty in its application” Its failure to represent the interest of rural African women is also raised as a shortcoming.
I believe that the Protocol has remedied weaknesses of both the CEDAW and the African Charter in terms of accommodating universal rights of African women with cultural sensitivities of their community. On one hand, the protocol draws inspiration from global human right norms through ‘cut and mix’ approach, on the other hand, it has contextualized these norms to African reality. In that sense, it overcomes universalism/relativism dichotomy in the women’s right discourse. Most importantly, Article 17 of the protocol provides that “Women shall have the right to live in a positive cultural context and to participate at all levels in the determination of cultural policies.” Rather than being a mere subject of the discourse, this provision paves the way for African women to bea part of internal dialogue active participant in reforming discriminatory traditions and harmful cultural practices which are entrenched in the social structure. From this, it can be inferred that the Maputo Protocol reconciled the doctrine of universalism and cultural relativism in an appreciable extent.
Conclusion
The complex relationship between culture and women’s right should not be framed in “either-or” fashion. Because such formulation considers universalism and relativism as inherently conflicting parallel axioms which may not be compromised within women’s human right paradigm. However, in an exceptionally heterogeneous continent like Africa, underestimating the role of culture in the development of modern human rights standards could be counterproductive as the former provides credibility and legitimacy to the latter. On the converse side, the transformative effect of global human right standards over oppressive and exploitive culture and traditions should not also be overlooked. From this standpoint, the attempt of African Charter to reconcile universally recognized rights of women with local cultural traditions appears to be unsuccessful as the commitment to gender equality is much less than the emphasis given to traditional values. It has also been noted that because of its western orientation CEDAW failed to appreciate cultural diversity and forget many African women who consider their communal identity to be a significant factor in their everyday experiences. The Maputo Protocol, on the other hand, exemplifies how, in the face of profound diversity, the bottom-up approaches anchored in local cultures can be productive in enhancing and reinforce women’s right.
