WOMEN'S HUMAN RIGHTS IN AFRICA:
BEYOND THE DEBATE OVER THE UNIVERSALITY OR RELATIVITY OF HUMAN RIGHTS.©
Diana J. Fox
In the fifty years following the adoption of the
Universal Declaration of Human Rights by the United Nations General
Assembly in 1948, anthropology as a discipline has embraced a predominantly
ethical relativist stance toward the idea of human rights as a legitimate
universal concern for all cultures. In the past decade, however, the
rising prominence of women's rights as human rights has challenged this
point of view. Within the context of the global women's human rights
movement, feminist anthropologists are in the forefront of this challenge,
striving to uphold anthropology's important focus on cultural context,
while at the same time exhibiting a deep concern for practices which
harm women, including female genital mutilation and satie, both of which
may be argued to be morally objectionable outside of any given culture.
Feminist anthropological theory and feminist legal scholarship have
questioned the desirability of objective ethnographic reporting of such
practices, claiming that to remain aloof from statements of value implies
complicity through silence (1).
Objective reporting, it is argued, denies the existence
of the researcher as a "positioned subject" with a point of
view, such that the absence of a point of view in reality is a point
of view that is not articulated. The effort to articulate a feminist
anthropological position on human rights not only undermines the validity
of ethical relativism, but also emphatically argues that the western
liberal tradition, which informs the bulk of the contemporary human
rights movement, represents a fragmentary discourse on human rights,
and so cannot currently make claims for universality. In addition, human
rights are not yet recognized as universally valid, and the dominant
focus in the movement is still on political and civil rights, or first
generation rights, as compared to the weaker emphasis on important economic,
social, and cultural rights. These second generation rights, in addition
to third and fourth generation rights (group rights and women's rights,
respectively), are not nearly as well integrated into the existing international
instruments dealing with reporting, evaluation, and monitoring procedures
of human rights violations.
Feminist anthropology endorses the view that context
is critical in our understanding and explication of any given situation;
however, it also insists that cultural context, like any particular
situation, is only a part of a much deeper and complex totality within
which a particular context is necessarily subsumed. To strive toward
completeness is to strive to embrace multiple traditions under the umbrella
of universal human rights, and to do so the significance of second,
third, and fourth generation rights must be regarded as significant
a priority as first generation rights.
Feminist anthropologists who support women's human
rights must face the same conundrum that feminist legal scholars, such
as Rebecca Cook, have articulated, namely, "how can universal human
rights be legitimized in radically different societies without succumbing
to either homogenizing universalism or the paralysis of ... relativism?"
This question is the central concern of this paper.
It rests on the assumption that international human rights norms should
indeed become part of the legal culture of any given society, and to
do so, they must strike responsive chords in the general human public
consciousness (3). This paper argues that a defensible way in which
this challenge may be met is to acknowledge that universality and specificity
are not necessarily intrinsically oppositional forces, or, if you wish,
they are not mutually exclusive, either conceptually or practically
To demonstrate this point, a number of prerequisite
points must be made: (1) ethical relativism is an untenable position;
(2) relativism does not preclude cultural context, but the anthropological
position generally has overlooked this fact; (3) a human rights discourse
containing universal principles which are culturally meaningful depends
on inter- and intracultural dialogues; (4) the topic of women's human
rights in Africa encapsulates many of the contentious issues swirling
around international human rights, prominently among them, the relationship
between the individual and society.
To explore these claims, I draw primarily upon my
recent experience co-editing a volume of essays entitled, "Women's
Rights As Human Rights: Activism and Social Change in Africa" (5).
The process of pulling the project together produced significant discussions
around the tensions between relativism and universality, and the tendency
to confuse universality with moral absolutism--a rigid position which
obscures the flexibility which universality can encompass. Because the
process by which the editors have come to adopt such a perspective sheds
light on the argument itself, this paper outlines the stages through
which these perspectives emerged.
The project's initial goal was to bring together
scholars and activists to think about women's human rights in diverse
African situations. The co-editor of the volume, Dr. Naima Hasci, is
both a social anthropologist and an international development worker
with the World Bank, most recently the United Nations Development Program,
and thus brings perspectives from both endeavors. Hasci's work with
Somali refugee women in Kenya provides an especially interesting example
of not only the value but the necessity of bringing together universal
principles and cultural context so that women's human rights can be
upheld. I begin the inquiry into this process first by examining some
of the internal contradictions of ethical relativism.
Ethical relativism is an extreme and highly conservative
position. I employ the term here, as historian Merrilee H. Salmon has
recently argued (6), to refer to the understanding that ethical principles
emerge within specific cultural contexts, shifting from culture to culture.
In this view, extracultural standards of moral judgments are not possible;
moral judgments can only be determined through the standards of a culture's
norms. This view is unacceptable, as Salmon points out, since it relies
on a notion of culture which we anthropologists have ourselves rejected
over the past few decades, namely, that culture is a bounded and internally
Anthropology's revised notions of the culture concept
render ethical relativism an incoherent perspective. It has become common
place over the past decade to refer to culture as unbounded, although
attempts to erect boundaries through political coercion and cultural
nationalism are rampant in the world. Culture is also described as heterogeneous,
fluid, shifting, emergent, contradictory, processual, and other such
descriptions which aim to capture an indeterminateness about the idea.
In this alternative view of culture, both moral values and a society's
norms emerge out of a conglomeration of interwoven ideas obtained through
a complex array of processes which include various forms of historical
and/or contemporary contact with "outsiders."
In a recent article in the New York Review of Books,
Clifford Geertz discusses these two contrasting notions of culture,
invoking Mary Louise Pratt's idea of "contact zones," a term
she employs to refer to the power-laden dynamics of cultural intersections.
Contact zones are defined as "the spaces in which peoples geographically
and historically separated come into contact with each other and establish
ongoing relations, usually involving conditions of coercion, radical
inequality and intractable conflict" (7). Norms and moral values
are neither wholly shared or fixed, and they are never culturally "pure",
for indeed there is no such thing.
Even in relatively isolated and/or egalitarian groups,
variations in values and the existence of power dynamics should challenge
us not to accept too easily the ethical relativist perspective, since
the expressed or ideal moral standard is clearly never the only view,
but typically that of the powerful. It is in this sense that ethical
relativism is a conservative position. It unwittingly supports the hegemonic
moral standard, subverting the voices of resistance whose moral values
may have emerged either through contact zones or from intergroup dynamics.
Given these inconsistencies with the ethical relativist stance, the
book's contributors have endeavored to move beyond the polarizing debate
to embrace instead Rebecca Cook's ideal of a concept of universal human
rights which is neither homogenizing nor subject to the errors of relativism.
In so doing, however, we cannot accept the notion of a "universal
human nature," which fails to see particulars. Rather, we must
recognize that persons have rights as concrete persons, not as abstract
Gail Linsenbard, moral philosopher and Sartre and
De Beauvoir scholar, sheds further light on the possibilities for an
intersection of the universal with the culturally specific in her chapter
"Women's Rights as Human Rights: An Ontological Grounding."
Linsenbard contends that arguments in support of women's rights as human
rights involve both specific claims about the conditions of particular
women and groups of women, as well as universal claims about women as
human beings who, by virtue of their humanity share a fundamental ontological
existence. She expresses what this shared ontology is in her defense
of women's rights as human rights:
An adequate account of women's rights as human rights
must reveal women's oppression as culturally, socially, and historically
situated; that is, it must pay attention to the particular kind of oppression
that women suffer in situation ... It is in this sense that Simone de
Beauvoir and Jean Paul Sartre have emphasized that women and men are
"singular-universals." That is, they are understood in virtue
of their particular situation which is lived by them singularly, but
their situation--as situation--has a universal dimension to the extent
that all situations are lived and experienced in a particular way by
everyone. Thus we might offer a ... defense of women's rights as human
rights in light of the fact that their situation--as situation--has
a universal dimension in so far as it is one aspect of the human condition
which, as situation, all persons share (8).
THE BOOK PROJECT: A CROSS-DISCIPLINARY DIALOGUE
This section explores in some detail the actual process
by which the project's participants embraced a position which seeks
an intersection between cultural specificity and universal principles.
Again, the process is valuable since it demonstrates how abstract ideas
are negotiated and hashed out in an actual setting involving groups
of people who are often seen as antagonistic. "Western" and
"African" feminists each are labels which lump together diverse
groups of people and disparate theoretical frameworks emphasizing sameness
over diversity. The range of perspectives, by contrast, proffered by
the diversity of the project participants was crucial to our task. Scholars
hailed from cultural anthropology, moral philosophy, social history,
political science, and feminist legal studies. Activist participants
worked with four primary organizations: Oxfam America, Grassroots International,
the UNDP, and the Center for Third World Legal Studies.
While the diversity of the members remains crucial,
the labels which characterize variations--westerners/Africans; western
feminists/African feminists--do so sloppily, subverting existing commonalities
for the sake of emphasizing differences, implicitly suggesting the deterministic
view that nationality and culture are the dominant factors in human
interaction and primary influences in differences of opinion. When liberal,
Marxist, socialist, and radical feminisms can all be subsumed under
the label "western" feminism, the starkly reductionist quality
of the label reveals itself. While differences did indeed exist, commonalities
did as well, generated both through shared experiences and through independent
development of similar conclusions. Frequently, the tensions which surfaced
were more the result of differences in methodologies and approaches
to a shared topic. We discovered this at a conference held on December
5-6, 1997 at the Massachusetts College of Liberal Arts, where participants
presented their papers for discussion and critique.
One of the first concerns the participants wanted
to address was the fact that the structure and institutions of women's
international human rights law needs to be strengthened. As feminist
legal scholar Hilary Charlesworth demonstrates, the structures supporting
women's human rights are more fragile than the mainstream human rights
instruments which do not address gender specific rights. Charlesworth
argues that the international instruments dealing with women have "weaker
implementation obligations and procedures; the institutions designed
to draft and monitor them are under-resourced and their roles often
circumscribed compared to other human rights bodies" (9). The explanation
for this state of affairs pertains to the still marginal status of women's
human rights on the general agenda of the human rights movement. This
fact in and of itself demonstrates that no matter what differences women
have with one another, the marginalization of their human rights affects
all women by virtue of their being women.
In addressing this problem, the rather distinct purviews
of scholars and activists emerged, although it would be overly simplistic
to say that these divisions were rigid along disciplinary lines, and
to do so would only reify the labels and their generalized characterizations.
Thus, some scholars placed greater weight on the theoretical frameworks
adopted to describe and explain the predicament of women's human rights,
and some used the frequently jargonistic language of poststructuralism
and its focus on discursive analysis. Activists generally analyzed the
successes or failures of specific women's rights projects designed with
the assistance of their organizations. These particular perspectives
gave rise to some important questions about the relationship between
theory and practice. What I found particularly interesting was the way
in which the creative process of imagining the book itself distilled
many of the difficulties which exist at a much larger scale in any effort
to articulate connections between the academic world and the world of
For example, the book's essays had been organized
into two sections, the first theoretical, the second case studies. Activists
protested that this organization privileged theory over practice, implicitly
supporting scholarly approaches over activist ones. They urged instead
for a thematic organization which, it was argued, would do away with
such a dualism. Ironically, it is theory itself which ultimately helps
to move beyond the theory/practice dualism. As poststructuralism and
Marxist theory have made abundantly clear, practices are always supported
by a set of assumptions and often unspoken or unrecognized suppositions,
hence the notion of praxis. But activists, not necessarily guided by
poststructuralist theory, were nonetheless aware that the book's initial
organization would perpetuate a false theory: that theory has more to
say than concrete examples.
Once we agreed on the framework of the book, a second
discussion ensued around the origins of theoretical works used by researchers.
A Kenyan scholar argued that the historical tendency of western scholars
to overlook the contributions of African theorists was reflected in
the choice of theorists that scholars employed in their discussions.
How could we not include leading African thinkers in a project designed
to embrace cultural context in the search for a truly universal human
rights? This point led to a commitment on the part of participants to
read and incorporate in their chapters some articles by African thinkers
such as Oloka-Onyango, Wa Matua, and others, examining their approaches
to the cultural relevance of international human rights.
To summarize, these exchanges helped to clarify the
intellectual terrain of the book, and to identify a common objective:
to work toward a theoretical position which recognizes the validity
of African women's rights within their respective, concrete socio-historical
settings as human rights with universal import.
WHY WOMEN'S HUMAN RIGHTS IN AFRICA?
The arenas of women's human rights and human rights
in Africa specifically, are domains which emphasize the polemic of the
relativist horn and the universalist horn. The perspectives of each
surface in sociocultural and philosophical questions about the relationship
of the individual to society in Africa. The African Charter on Human
and Peoples' Rights, adopted in 1986, underscores for many the tension
between individual human rights and group or peoples' rights. In the
relativist view, the sanctity of the extended family in Africa undermines
the legitimacy of individual rights, viewed as a western import. Other
human rights instruments too, such as the Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW), adopted by the
General Assembly in 1993, privileges an independent, free woman.
Women's human rights activists do indeed emphasize
the idea of personal autonomy, precisely as a means of addressing the
oppression of individual women within the family unit where women's
human rights are frequently violated through domestic violence, restrictions
on access to resources, and in matters of marriage, divorce, and property
rights. In other words, the human rights of women epitomize questions
about the relationship of the individual to the group. Those in support
of universal precepts, including African legal scholar Makau Wa Matua,
argue that individual rights must always be applied in a social milieu.
"... a thorough understanding of the meaning
of human rights, and the complicated processes through which they are
protected and realized, would seem to link inextricably the concepts
of human rights, peoples' rights, and duties of individuals. Individual
rights cannot make sense in a social and political vacuum, devoid of
the duties assumed by individuals. This appears to be more true in Africa
than any other place"(10).
Matua is principally interested in the nature of the relationship between
the individual and society in Africa, which he characterizes as dramatically
different from the relationship between the individual and the state
in western societies. What is significant to this argument, in addition
to the nature of the relationships described, is simply the acknowledgment
that a relationship exists. The oversimplified opposition between the
individualistic west and communitarian Africa ignores the ways in which
individuals with varying degrees of personal autonomy are constituted
as members of society through groups, everywhere.
Women's struggles for human rights often position
them in opposition to family and social networks where their roles and
rights have been defined; however, because of the sanctity of the family,
they often choose not to seek empowerment and freedom which sets them
against their kin. It is therefore crucial to find ways for women to
be protected as individuals against abuses. Doing so should not mean
that the family will be undermined as an important social institution.
Coomaraswamy makes a fundamental observation when she asserts that "the
family is the place where individuals learn to care, to trust and to
nurture each other. The law should protect and privilege that kind of
family and no other" (11).
Although attention to the realm of the family in
Africa is central to any discussion of women's human rights, this focus
should not distract from other sources of abuse against women which
occur outside the local cultural context. To place a spotlight on the
family as the exclusive source of discrimination against women puts
disproportionate blame on this particular cultural domain, to the exclusion
of other violations of women's integrity. For example, in many parts
of Africa discriminatory practices remain unnoticed as such, and many
states--Algeria, for instance--uphold patterns of conduct which some
deny are disadvantageous to women, claiming instead that the attitude
toward women is essential to the cultural integrity of those countries
and significant constituents of national identity.
International practices too, such as the structural
adjustment programs (SAPs) of the World Bank and IMF, which in many
ways contribute to suspicion toward international human rights agendas,
may themselves constitute violations of personal economic rights. As
Illumoka has pointed out, SAPs have led to the depreciation of local
currencies and the "rationalization of industry, including privatization
of public enterprises and reduction of government expenditure on social
services, resulting in spiraling inflation ... and severely restricted
access to education and health facilities" (12). In their wake,
SAPs have contributed especially to the devaluation of women's work.
Nurturing cultural institutions are thus threatened through international
As the African women activists working on the book
project argue, the participation of African women in the international
women's rights movement emphasizes that the affronts women suffer to
their human dignity cannot only be solved through local institutions.
This being the case, the debate over the relativity or universality
of human rights is one which actually distorts the problem, rather than
illuminating the condition of women. The harm in maintaining this bipolar
debate is that it perpetuates "international hierarchies of power
that contribute to the on-going polarization of the West and the Third
World and [limit] ... the definition and scope of struggles perceived
to fall within the purview of women's human rights" (13).
Oloka-Onyango and Tamale suggest that one possible
remedy lies in an "intra-cultural and cross-cultural dialogue"
which recognizes that "the personal is political, but the political
is extremely rich and diverse" (14). It is this remedy which has
the potential to push anthropology past its commitment to the philosophy
of relativism. Although anthropologists have always engaged in cross-cultural
dialogue, these dialogues were not exchanges in the manner supported
by Oloka-Onyango and Tamale which require recognition of cultural assets
and limitations on all sides. Nor have these dialogues been inspired
by the feminist consciousness that introduces the dialectic between
the personal and the political.
Since the book project has fostered both a cross-disciplinary
and cross-cultural dialogue of this nature, for the remainder of the
paper, I examine how a dialogue of the type proposed by Oloka-Onyango
and Tamale can be useful in moving beyond the debate toward an alternative
approach to women's human rights. I begin by exploring how the historically
relativist perspective toward human rights in anthropology impeded intra-cultural
exchanges, in spite of its intentions to defend the powerless.
ANTHROPOLOGY, HUMAN RIGHTS AND ETHICAL RELATIVISM
In 1948, the American Anthropological Association
(AAA) distributed a statement written by Melville Herskovitz rejecting
the universality of international human rights norms. In formally advocating
such a rejection, the AAA posited that the recently released Universal
Declaration of Human Rights enumerated rights and freedoms which were
culturally, ideologically, and politically nonuniversal (15). Rather,
the rights and freedoms cited therein contained a western, Judeo-Christian
bias, and therefore could not be regarded as rights which are inalienable.
In a recently published article in Human Rights Quarterly,
Ann-Belinda Preis explores the way in which the 1948 decision formed
a foundational and predominantly uncritical approach to human rights
on the part of anthropologists which remained unchallenged for the next
thirty or so years. Herskovitz's point of view emanated from his concern,
and the larger anthropological concern, with the impact of western colonialism
on two-thirds of the world, and the hypocrisy of supporting the claim
for human rights while colonial regimes which drafted and signed the
Declaration simultaneously committed atrocities in the name of the civilizing
In an article which addresses statements of this
kind, Wa Mutua states that while the current human rights movement has
its roots in the western liberal tradition, and this fact indicates
a lack of completeness, it does not, however, deny "the universality
of many of its ideals and norms." Mutua argues:
In the West, the language of rights primarily developed
along the trajectory of claims against the state; entitlements which
imply the rights to seek an individual remedy for a wrong. The African
language of duty, however, offers a different meaning for individual/state-society
relations; while people had rights, they also bore duties. The resolution
of a claim was not necessarily directed at satisfying or remedying an
individual wrong. It was an opportunity for society to contemplate the
complex web of individual and community duties and rights to seek a
balance between the competing claims of the individual and society.
This view is not relativist. It does not advance
or advocate the concept of apartheid in human rights or the notion that
each cultural tradition has generated its own distinctive and irreconcilable
concept of human rights (17).
Moreover, Matua recognizes that relativism in human
rights serves as an anti-imperial device, as Herskovitz intended as
an advocate for colonized societies; but, its use as such represents
a misunderstanding inspired by cultural-nationalism. While arguments
against relativism are often ethnocentric and, in Matua's view, a symptom
of the moral imperialism of the west, he also insists that both extremes--relativism
and ethnocentric arguments against relativism--"only serve to detain
the development of a universal jurisprudence of human rights" (18).
Herskovitz's position deserves more critical reflection than this paper
allows but, suffice to say, his position had a profound effect on anthropological
thought, such that the anti-relativist position has only recently begun
to amass proponents.
Perspectives proffered by Canadian Africanist Rhoda
Howard and political scientist Jack Donnelly represent some of the well-known
challenges to the position of ethical relativism. Donnelly recognizes
that there are other trajectories for human rights within the liberal
tradition, outside of the conception of the individual as "atomistic
and alienated from society and the state." Howard's position, according
to Matua, however, represents an ethnocentric critique of relativism.
Matua says of Howard that:
[S]he refuses to acknowledge that pre-colonial African
societies knew human rights as a concept ... Howard is so fixated with
the Western notion of rights attaching only to the atomized individual
that she summarily dismisses arguments by African scholars, some of
whom could be classified as cultural relativists, that individual rights
were held in a social, collective context (19).
Howard does point out that while women and men have
more formal rights in post-colonial Africa, the western model has essentially
deprived women of the political influence they had in many indigenous
societies. Her example of the 1929 "Women's War" in Nigeria
is a case in point, in which tens of thousands of Igbo women attacked
chiefs appointed by the British, as a protest against the abrogation
of their traditional power. Moreover, Howard also insists that there
can be no adequate analysis of the human rights of African women, or
improvements made for their effective implementation without understanding
the sociohistorical context of women's lives. Legislation that does
not recognize the influence of culture and tradition on male and female
perceptions of each other will be ineffective (20).
While Donnelly and Howard are two examples of engagement
with human rights in the African context, the more widespread challenge
to relativism which has swept the discipline has just begun to move
more seriously into the realm of human rights, emanating especially
from feminist circles. The context for this challenge, as I have stated
throughout, is within the increasingly prominent place of women's rights
issues on the general agenda of the human rights movement. Since feminism
aims to connect the academic world with social change, feminist anthropologists
work not only to describe and analyze the lives of women and gender
relations, but to generate strategies to improve them. The feminist
agenda is antithetical to relativism--but not subsequently, cultural
context--since it depends on judgments in order to develop strategies
Feminist anthropology has inevitably intersected
with international women's human rights movement asserting, as feminist
anthropologist Martha C. Ward puts it: "flatly stated, the treatment
of women in human societies transcends cultural boundaries" (21).
These statements are not ethnocentric rejections of relativism, but
rather claims supported by diverse groups agreeing with Oloka-Onyango
and Tamale's dictum that the personal is political, but the political
is extremely rich and diverse. Feminists from both camps have argued
that "it is simply unacceptable to subject women to subordinate
treatment that enslaves them to men," and that "human rights
is about regulated civilized behavior and conduct toward all human beings"
(22). These positions reflect a coming together in feminist anthropology
of applied and academic approaches, with clear activist points of view
attached to research agendas.
The women's human rights movement now faces the challenge
of carrying "women's voices, interests, and concerns into the mainstream
human rights law-making arena so that the diversity of women's experiences
in different cultures is introduced into international human rights
law" (23), establishing new forms of contact zones which eschew
coercion, radical inequality, and intractable conflict. It is through
this process that anthropologists can be especially valuable participants,
employing their strengths in collecting and analyzing ethnographies
which establish avenues to disseminate the voices of the women with
whom they collaborate.
I now turn to Naima Hasci's work with Somali women
refugees in Kenya. As an anthropologist and human rights activist, Hasci
provides a wonderful illustration of the need to unite activism and
scholarship as an approach for bridging international, national, and
local institutions for women's human rights so that they may assist
more effectively the communities they endeavor to serve.
THE EXAMPLE OF SOMALI WOMEN REFUGEES IN KENYA
In her chapter, "From the Frying Pan into the
Fire", Hasci examines the rights of refugee women in Africa, focusing
on Somali refugee women in Kenya during the period 1991-1997. She seeks
to address "the inconsistencies between the high level standard
setting of human rights laws by the international community and the
low level enforcement of such rights at the national level", especially
with respect to the protection of refugee women's rights in countries
Hasci begins with a discussion of the location of
refugee settlements in border communities (24), where "the state's
juridical presence is minimal or non-existing." In such instances,
the host community wields de-facto powers at the local level often with
negative impact on refugees. At the international level, CEDAW has been
instrumental in highlighting and interpreting violence against women.
Article 1 of the Convention is relevant to female refugees, condemning
"any act of gender-based violence that results in, or is likely
to result in physical, sexual or psychological harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation
of liberty, whether occurring in public or private life." Also,
since 1988 the United Nations High Commissioner for Refugees (UNHCR)
has discussed the issues of safety, discrimination, and sexual exploitation,
and in 1995 finally published guidelines on violence against and protection
of refugee women. While these guidelines on refugee women's protection
are "extensive, detailed and drawn from various refugee women's
experiences in the camps, including Somali women in Kenya in the last
7 years ... it remains to be seen how effective CEDAW and the UNHCR's
guidelines will be in contributing to the prevention or mitigation of
sexual violence and the promotion of equity among refugees" (25).
Since national governments are ultimately responsible
for effectively implementing international human rights standards, it
is the Kenyan government which is responsible for implementing the UNHCR's
guidelines. According to Kenya's national law, rape is a crime punishable
by imprisonment with hard labor for life, with or without corporal punishment
(26). In spite of this, the police and military in Kenya have "not
only been negligent in their duties to stop the rape crimes, but on
the contrary, in many instances the Kenyan police were reported to have
raped, beaten and killed refugee women."
Hasci argues that given Kenya's poor human rights
record, especially toward women, and its policy of persecution of Somali-Kenyans,
"the international community and particularly the UNHCR could have
taken appropriate measures in time to avoid the establishment of the
refugee camps in such a dangerous region where border disputes play
a role in acts of aggression against refugees."
Clearly, protection by the host government of refugees
is not occurring; instead, the camps create "prison-like conditions
providing minimal assistance, water, food, shelter and medicine"
(27). Although international agencies are theoretically supposed to
work in conjunction with host governments for the protection of refugees,
the paradox, says Hasci, is that "the UNHCR itself is in a sense,
like the refugees, a guest of the Kenyan government, and in the final
analysis, it operates in an environment over which it has little control,
and therefore unable to fulfill effectively its mandate" (28).
In exploring ideas which may lay the foundation for
future solutions to these kinds of paradoxes, it is imperative to generate
a commitment and sense of ownership of laws at the national and local
levels. Existing laws should be linked to or drawn from existing indigenous
socio-legal norms and principles, such as, for instance, the Somali
"xeer". The international community faces a dilemma: how to
uphold the universality which breathes life into international legal
instruments of women's rights while at the same time minimizing those
laws' disassociation from local socio-legal norms.
Attention to institutions such as the "xeer"
is essential. The "xeer" is a socially constructed set of
norms established to safeguard security and social justice for Somalis
in Somalia and in the diaspora. While there is no room within the confines
of this paper to delve into the specific structure and principles of
the "xeer," it is nonetheless significant to point out that
it stands as one of the pillars of communal relations, and as such codifies
accepted standards of conduct and behavior. Since the international
and national normative systems function inadequately, refugee women
must gain access to their rights by negotiating all three levels: international,
national, and cultural. Institutions which draw from legal structures
that societies can identify with are crucial if human rights are to
become integrated into the legal culture of a given society.
Action toward this end is occurring. In the past
few years, the United Nations General Assembly and the Commission on
Human Rights have successfully urged Mary Robinson, the High Commissioner,
to establish through her Technical Cooperation Program, National Human
Rights Institutions. These Institutions refer to bodies established
by governments through constitutional or legislative processes for the
express purpose of supporting and protecting human rights.
The idea behind these organizations is that "the
development of a culture of human rights at the national level depends
on the existence of a vigorous civil society, one which encourages the
formation of community groups; which not only tolerate but encourage
respect for individual differences" (29). This mission represents
the parallel aim of the women's human rights movement to acknowledge
women as autonomous persons within the realm of family relations, in
that both strive to integrate the individual and the community as two
essential components of coherent human rights principles.
The General Assembly and the Commission on Human
Rights recognize the importance of diversity among those who comprise
the National Institutions, since "an effective, credible National
Institution will be one which reflects in composition, the community
it is established to serve" (30). Moreover, because those individuals
who require help the most are unlikely to seek out the Institution,
one of its purviews is to develop approaches to assist those with physical
disabilities and those in remote locations without adequate transportation.
Community groups established to support the work
of the Institution will promote decentralization and greater accessibility.
Since it is crucial that National Institutions respond to particular
community needs, the nature of the assistance has been varied. Over
the past few years in Africa, Institutions have been established in
South Africa, Uganda, and Zambia. Ultimately, National Human Rights
Institutions have the potential to manifest the rhetoric of international
instruments such as CEDAW and the African Charter. Moreover, they can
... in a manner which is consistent with the standards
prescribed in the international treaties, while accommodating constitutional
particularities and the extraordinarily disparate challenges posed by
local conditions and cultures -- thus respecting ethnic, cultural, religious
and linguistic diversity in a more informed and sensitive manner than
any regional or international body (31).
National Institutions reflect the burgeoning awareness
of the limitations to relativism and the necessity of developing a truly
universal human rights discourse, one which recognizes that women's
rights are indeed human rights, and that African women's rights need
to recognize that African women exist as "singular-universals"
as do we all. In her chapter's conclusion, Hasci concurs:
... the issue here is not about maintaining relativism
as a dichotomy to universalism, but about integrating, adapting and
building on what is universally human and gender-sensitive about a society's
cultural and juridical heritage so that it can be genuinely sustained
locally, nationally and internationally (32).
1. I would like to thank Dr. Gail Linsenbard for
her insights and critical reading of parts of this paper. This article
is dedicated to my parents, Sanford and Vivian Fox, whose own scholarship
and activism for human rights continues to inspire me.
2. Cook, Rebecca J. "Women's International Human
Rights Law: The Way Forward," in Cook, Rebecca J., Human Rights
of Women: National and International Perspectives. University of Pennsylvania
3. See Coomaraswamy, Radhika, "Reinventing International
Law: Women's Rights as Human Rights in the International Community,"
Human Rights Program, Harvard Law School, 1997.
4. Colligan, Sumi, "`To Develop Our Listening
Capacity, To Be Sure that We Hear Everything': Sorting Out Voices on
Women's Rights in Morocco," in Diana J. Fox and Naima Hasci , eds.,
Women's Rights As Human Rights: Activism and Social Change in Africa,
. . Lewiston, NY: Edwin Mellen Press, forthcoming, 1999.
5. Fox, Diana J. and Naima Hasci, eds., Women's Rights.
Lewiston, NY: Edwin Mellen Press, forthcoming, 1999.
6. Salmon, Merrilee H., "Ethical Considerations
in Anthropology and Archaeology, or Relativism and Justice For All,"
Journal of Anthropological
Research , vol. 53, 1997.
7. Pratt, Mary Louise, Imperial Eyes: Travel Writing
and Transculturation. Routledge. pp. 6-7, cited in Clifford Geertz,
1998. "Deep Hanging Out." New York Review of Books, Vol. XLV:
16, pp. 69-72, 1992.
8. Linsenbard, Gail, "Women's Rights as Human
Rights: An Ontological Grounding," in Diana J. Fox and Naima Hasci
, eds., Women's Rights as Human Rights: Activism and Social Change in
Africa, Lewiston, NY: Edwin Mellen Press, forthcoming. 1999.
9. Charlesworth, Hilary, "What are 'Women's
International Human Rights'?" in Cook, Rebecca J., Human Rights
of Women: National and International Perspectives. University of Pennsylvania
10. Matua, Makau Wa, "The Banjul Charter and
the African Cultural Fingerprint: An Evaluation of the Language of Duties,"
Virginia Journal of International Law Vol. 35: 39, pp. 340, 341, 1995.
11. Coomaraswamy, Radhika, "To Bellow Like a
Cow: Women, Ethnicity and the Discourse of Rights," pp. 52-53,
in Cook, Rebecca J., ed., Human Rights of Women: National and International
Perspectives,. Philadelphia: University of Pennsylvania Press, 1994.
12. Illumoka, Adetoun, "African Women's Economic,
Social, and Cultural Rights--Toward a Relevant Theory of Practice,"
In Rebecca Cooke, ed., Human Rights of Women: National and International
PerspectivesPhiladelphia: University of Pennsylvania Press, 1994.
13. Colligan, Sumi, "'To Develop Our Listening
Capacity, To Be Sure that We Hear Everything': Sorting Out Voices on
Women's Rights in Morocco," in Diana J. Fox and Maima Hasci, eds.,
Women's Rights As Human Rights,. Lewiston, NY: Edwin Mellen Press, forthcoming,
14. Oloka-Onyango, J. and Sylvia Tamale,"'The
Personal is Political', or Why Women's Rights are Indeed Human Rights:
An African Perspective on International Feminism," Human Rights
Quarterly , Vol. 17: 691-731, 1995.
15. Preis, Ann-Belinda S., "Human Rights as
Cultural Practice: An Anthropological Critique" , Human Rights
Quarterly ,Vol. 18: 286-315, 1996.
16. Personal communication with Dr. E.P. Skinner
17. Mutua, Makau Wa, "The Banjul Charter and
the African Cultural Fingerprint: An Evaluation of the Language of Duties,"
Virginia Journal of International Law , Vol. 35: 39. pp. 344-345, 1995.
19. Both Howard and Donnelly uphold the importance
of establishing the universality of human rights, although both recognize
that universal acceptance does not exist. Howard, for instance, has
most recently argued that concepts of human dignity exist in many African
cultures, but dignity should not be equated with the notion of rights;
therefore, attempts to establish the existence of universally held notions
of rights overlook the significant distinctions therein.
20. Howard, Rhoda, "Women's Rights in English-speaking
Sub-Saharan Africa," In Claude E, Welch, Jr. and Ronald I. Meltzer,
eds., Human Rights and Development in Africa.. Albany: State University
of New York Press, 1984.
21. Ward, Martha C., A World Full of Women, Waveland
22. Cook, Rebecca J., "Women's International
Human Rights Law: The Way Forward," in Cook, Rebecca J., ed., Human
Rights of Women: National and International Perspectives. Philadelphia:
University of Pennsylvania Press, 1994.|
24. Hasci defines border communities as "...
culturally coherent territories where people of definite cultural identities
have had to be split into two or more units, each faction placed in
the area of jurisdiction of a distinct state; which functions to integrate
such a pre-existing culture area into a new socio-economic system removed
from the whole original culture." "From the Frying Pan into
the Fire: Somali Refugee Women's Rights in Kenya," In Dian J. Fox
and Naima Hasci, eds., Women's Rights as Human Rights: Lewiston, NY:
Edwin Mellen Press, forthcoming,1999.
25. Hasci, Ibid: 3
26. Goodwin-Guy, Guy S., The Refugee in International
Law. Oxford University Press, 1996, p. 257, cited in Hasci, Ibid.
27. Hasci Ibid: 3
28. Ibid: 4
29. Burdekin, Brian and Ann Gallagher, "The
United Nations and National Human Rights Institutions," Human Rights
Watch, No. 2, Spring, pp. 21-25, 1998.
30. Ibid: 5
31. Ibid: 7