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Relativism in human rights may justify African wrongs

It is undeniable that the Universal Declaration of Human Rights of 1948, the two UN sponsored covenants of 1966, and the entire international Bill of Human Rights of 1993 have brought untold revolution to our understanding of cultural rights. Too little was known about human rights before the United Nations in 1945. The same human rights that insisted on the principle of self-determination of people brought about independence to many people who were under the grips of European Imperialists. The human rights and fundamental freedoms have been endorsed by people of all walks of life without questioning their origins. For instance, civil and political rights, economic, social and cultural rights, and ecological rights. However, this blog is more interested in considering how human rights gets into dialogue with other cultures.
For instance, Africans have been adversely accused of not respecting the human rights of women. But, I am wondering how far African cultural values and customary norms have been put into consideration? Who has ever questioned how traditional African societies valued the womanhood and girl child? Who has really cared to find out the contention of African customary law on the same? If anything, African customary regimes have been blacklisted as one of the practices that must be destroyed by human rights.
Womanhood in many African customs and practices has been safeguarded with respect. Almost in patrilineal societies a woman is not neglected by customary norms. In Luo customary law in Kenya, womanhood is treated with great regard. Such traditional norms such as widow inheritance were meant to safeguard the rights of a married woman. Remember that in African customary law, marriage as an institution is not an individual contract but inter-community contract. That again, makes marriage a public law other than private law. Marriage was protected by communal rights and a married woman was honoured and her human rights were protected even after the demise of the spouse. She was regarded as the owner of the house. Even in polygamous practices, the house belonged to the wife and not the husband. By doing so, the woman was protected by the entire community of the husband.
With time, many Africans are avoiding traditional marriage due to religion and statutory law. Marriage has become a private affair between the spouses making it risky for the contractors to have their rights protected by the community. The institution of dowry is fading away very fast. Marriages are becoming very loose and unprotected by public law. It is a civil law affair and couples can decide to break-up at will and any time. Doing away with customary courts in Kenya in 1967 brought crisis in the development of African customary law and the African jurisprudence. The formal courts are ill prepared to hear cases of customary law. Custodians of customary law such as wise elders and village chiefs have not been recognised by the constitution and their role faded away. In Kenya, the situation was worsened when chiefs became administrators, other than community wise elders. Governments turned chiefs into civil servants making them lose their role of custodians of customary law. This is not the case in Ghana and Nigeria. In the two nations, chieftainship is still recognised as an institution of African customary law. The constitution in both countries recognise the role of the chief. Chiefs have also a big role to advise the government and to play adjucation role in matters pertaining to customary law. It is in the wisdom of the chiefs that the state would manage to deal with crimes and some civil offences affecting the indigenous.
Abolishing the African courts is the Kenyan undoing. For instance, how do we expect pastoralist communities to access justice using colonial laws? This is unfair and against the cultural rights of the people.
I do believe strongly that Africans have legal values that cannot be wished away by universal human rights. I also agree that more research is required to reveal certain values contained in the African traditional systems that can abet the jurisprudence on human rights and its enforcement in Africa today.
This story shall continue in the coming discussions….
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About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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