Jane Wachira
Human rights are as old as human civilisation; however their use and relevance has been well-defined during the recent years. They were first defined by the Scottish philosopher John Locke (1632-1704) as “absolute moral claims or entitlements to life liberty and property”. The best known expression of human rights is in the Virginia Declaration of Rights of 1776, which proclaims that “all men are by nature equally free and independent, and have certain inherent rights which, when they enter a state of society, they cannot, by any compact, deprive or divest their prosperity.”
Philosophers, theologians, social scientists and lawyers, have also attempted to define human rights. Philosophers have focused on foundational issues in ethics, lawyers on questions of international legal obligation, while theologians have provided a conception of human rights that is often informed by natural law theology, which understands human rights from the perspective of ultimate meaning and purpose of life. In all these perspectives, what is obvious is that human rights theory is both historical and transcendent, at the centre of which there have been three points that are key in the whole process of developments of human rights theory, namely human dignity, natural order, and rights and duties.
They are rights in the strict and strong sense of entitlements that one simply has because one is a human being. Human rights are regarded as the highest moral precepts; a notion that has rendered human rights claims scandalous. In this article, I will attempt to decipher the tenets of human rights, what they assert vis-a-vis what they actually have been made to be. The theoretical concept of human rights presents a utopic figure for society whereas the situation is dystopic and is actually worsening. Human rights are in a dilemma; are they protecting, and promoting, peace and equality in society, or are they helping perpetrate violations and abuse of the very characteristics that the human rights corpus, INGO, western countries and western academicians seek to protect, promote and uphold.
The roots of rights and the rights theory can be traced from ancient and medieval times, through the revolutionary ages of Britain, America and France. The rights doctrine is thought to have a long history from the theory of natural rights through divine (God-given) to practical rights in the agreements made in a reciprocal social contract between the autonomous and rational moral decision-makers, also known as natural law.
Principles of human rights
Characteristics of human rights include inalienability, an individual is not able to sell his rights or those of others; they are universal because everyone is born with and possess the same rights regardless of where they live, their gender or religious, cultural and ethnic background; interdependent and indivisible, because all rights political, civil, socio-cultural and economic, are equal in importance and none can be fully enjoyed without others.
There is a crush in the jurisprudential nature of human rights – that is cultural relativism versus universalism of rights. The former asserts that rights are not universal but differ from one society to another according to their individual cultures, allowing human rights to be interpreted differently throughout the world; the latter asserts that the so-called primitive or undeveloped cultures will eventually become advanced and adopt the same laws and human rights as the western societies. The aspect of cultural relativism is one among others that contributes to human rights violations in the 21st century. Nations will impose their cultures, however barbaric and primitive, on their citizens regardless of whether they are contravening the doctrine of human rights or not. This is mostly evident in African societies and Islamic countries.
Professor Makau Mutua exhibits a non western liberal view of human rights through his metaphorical model of Savages Victims and Saviors (S-V-S). The “savage” evokes images of barbarism, with acts as cruel and unimaginable as to represent their negation of humanity. According to him the classic savage is the state, which seems forever bent on “consumption” of humans. States become savages when they choke off and oust civil society. The “good” state controls its demonic proclivities by cleansing itself and internalising human rights; the “evil” state on the other hand expresses itself through an illiberal, anti-democratic or other authoritarian culture. 21st century state nations exhibit both. The salvation of the state is solely dependent upon its submission to human rights norms.
The “victim” is the human being whose dignity and worth have been violated by the “savage”. The victim is a powerless, helpless, innocent creature whose naturalist attributes have been negated by the primitive and offensive actions of the state or its cultural foundation. The “saviour” is the good angel who protects, vindicates, civilises, vindicates, restraints, and safeguards and protects victims against tyranny. Saviors include the human rights corpus within the UN, western governments, INGOs, e.g. Human Rights Watch and Amnesty International.
21st century violations
On internal and external conflict, South Sudan’s civil war began in December 2013 and continued up to and beyond 2015, with serious abuses of civilian rights by both parties, characterised by killings, rape, destruction and pillage of civilian property. In the Central African Republic, although the capital city was relatively calm for half a year, renewed sectarian violence gripped the city in late September 2015. At least 100 people died, 45 being civilians, shot at point blank range or stabbed to death, including having their throats slit. In Afghanistan fighting between the Taliban and government forces escalated, mainly characterised by suicide bombings and use of improvised explosive devices (IEDs)
On women and girls rights, the South Sudan conflict was accompanied by sexual violence which included cases of gang rape, of pregnant women being cut open and of women being raped using wooden sticks and plastic bottles. In Nigeria, the insurgent militant group Boko Haram in 2014 abducted 276 girls from a government girl’s secondary school in Chibok, who have not been rescued since. In Kenya and Uganda, there was stripping of women perceived to be dressed indecently; Kenya codified regulations against the same. In Libya, the HoR failed to amend the penal code provisions that deem sexual violence a crime against a woman’s “honour” rather than the woman herself. The code also continues to permit a reduced sentence for a man who kills his wife or another male relative because of extramarital sexual relations.
On freedom of association, expression and assembly, in 2015 Russian authorities used a 2012 law that demonises advocacy groups that accept foreign funding to list them as “foreign agents”; more than 100 NGOs including the country’s leading human rights group were labelled as such. The authorities blocked several independent websites, adopted new laws that would further stifle freedom of expression and prosecuted critics for speaking out online. In Kenya, the NGO board had attempted to reject the registration of a [Lesbians Gays Bisexuals Transgender and Indeterminate/Queer (gender)] LGBTIQ NGO, asserting that it was contrary to the penal code which criminalises same sex relations. However, this decision was overturned in the land mark case of “Eric Gitari v Non-Government Organisations Coordination Board and others”, as it contravened Article 36 of the Constitution on freedom of association.
On children rights, child marriages continue to take place in South Sudan, Yemen, Malawi and Bangladesh. It is a practice that affects the girl in her future life. In the Democratic Republic of Congo, children have been conscribed to war as child soldiers. Children also suffer the effects of war when they are alienated from their families and their education disrupted. In the USA, child labour is rife in tobacco farms.
On refugees and asylum seekers, in the absence of legal protection of the right to asylum, refugees and asylum seekers remain at risk of arrest, arbitrary and indefinite detention, and deportation as illegal immigrants. Currently there are 4.3 million Syrian refugees, making them the world’s largest refugee population under the UN’s mandate. Member UN states treat them with hostility and cruelty instead of offering them shelter and protection.
As well, political wars continued to rage on, in Burundi, South Sudan, Burkina Faso, Democratic Republic of Congo, Syria, Israeli, and Palestine, among many others. Present day societies are marred by religious and ethnic intolerance – the latter has been exhibited in Kenya during the 2007 post-election violence, religious war has been seen in Nigeria and Central African Republic where the Muslims and Christians live in different sections of the city. Access of meaningful justice has also remained out of reach for many people, as the courts independence has been compromised and the helms of perpetration of justice are now ridden with corruption…
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