Archive | July, 2010


29 Jul

There has existed a long standing debate between universalism and cultural relativism, to the extent that social scientists and human rights scholars have barely found acceptable symmetry in the ideological standoff. The nexus between the two ideologies is largely sustained by conservatism and liberalism, both pulling from different sides. Proponents of universalism assert that everyone is endowed with certain entitlements merely by reason of being human, and that such rights should be universal to the extent of their nature. To them, human rights are thus conceived in a Universalist and egalitarian fashion. Such entitlements can exist as shared norms of actual human moralities, as justified moral norms or natural rights supported by strong reasons, or as legal rights either at a national level or within international law. On the other hand, cultural relativism is the view that no culture is superior to any other culture when comparing systems of morality, law, politics or religion. It’s the philosophical notion that all cultural beliefs are equally valid and that truth itself is relative, depending on the cultural environment. Those who hold to cultural relativism hold that all religious, ethical, aesthetic, and political beliefs are completely relative to the individual within a cultural identity. Relativism often includes moral relativism, (that ethics depend on a social construct), situational relativism (where right or wrong is based on the particular situation), and cognitive relativism (truth itself has no objective standard). The divergence of these views kills the would-be possible consensus between the two ideologies. Universalists argue that if truth is relative, then rights are relative and not absolute. Among scholars of the two separate worlds, there seems to be an endemic and congenital trait of what could be described as a natural benign docility generally brought about by years of blind social submission and unquestioning compliance to the mystique of higher authority that reigns surreptitiously yet effectively in the two blocks of ideologues in varying degrees. True. This benign natural docility is generally regarded as positive, legitimate and virtuous strictly within the context of a fixed intellectual regime. Left without dialogue, the two ideologies remain antagonistic. A new twist for Kenya comes into play, especially with the prospects of a new constitutional dispensation. With the provisions of the Bill of Rights, which shall bring in a fresh regime in human rights advocacy, and the religious feuds over certain constitutional provisions, this is set to redefine the positions of ideologues in the two world on the Kenyan stage. This paper therefore seeks to foster intellectual symmetry between the two sets, by bringing scholars together. The objectives of this paper are: a) to examine the critical nature of universalism and cultural relativism in regard to human rights; b) to initiate practical relations between the two ideologies with regard to Kenya’s cultural diversity and constitutional dispensations; c) to examine the place of universalism and cultural relativism in the 21st century in regard to globalization
Concept Rationale for the Debate
For a fact, one of the most relatable issues of the past twenty years has been the dispute between two different ideologies of human rights on a global scale, universalism, and cultural relativism. Universalism holds that more “primitive” cultures will eventually evolve to have the same system of law and rights as Western cultures. Cultural relativists hold an opposite, but similarly rigid viewpoint, that a traditional culture is unchangeable to its enthusiasts. Academic literary criticism has attempted to be transformed from customary inquiry into an overarching search for symmetry between universalism and cultural relativism in the context of human rights. But is this merger possible?
The main problem in different cultures is that the question about morality isn’t settled and the common moral norms are not invented. In most cases disagreements between different cultures appear because of disagreements in facts. So, regulation of the most important facts leads to the solution of this problem. Another source of cultural disagreements and so criticism of other cultures are caused by differences of values. They are fundamental moral disagreements and their solution is practically impossible to the extent of the variance.
According to cultural ethical relativism morality is a matter of the culture. Moral principles of the individuality are formed according to the social morality. The conclusion is that people should follow moral norms and laws of their own society. Their own morality gives them a possibility to judge and so criticize all the other cultures. The concept of rights has no meaning unless rights are universal, but rights cannot attain Universality without a certain social anchoring. In other words, rights must be founded upon equality of access to economic, social, cultural, civil and political rights. The declaration of human rights occurred immediately after the atrocities committed during WWII. Then the end of the cold war created a series of tentative attempts to define “a new world order” for the stability of states the world over. Pursuant to this, the globalization of human rights began when the world was awakened to the crimes committed under one government (Hitler), and the need for a more universal system of accountability and responsibility. The Second World War led to many undertakings. The Universal Declaration of Human Rights was created following the Holocaust during World War II. The sheer atrocities committed by the Nazis through the enslavement and annihilation of Jews in Europe caused the world to cry out for justice. The Holocaust changed the worldview on human rights. Prior to the war, human rights were initially considered a “domestic concern”; they were to be enforced by only the governments of individual countries.
This view shifted considerably during the war, as human rights were then considered a universal concern and they were to be a concern for every person. By the end of the war, the world as a whole felt the need for the security of inalienable human rights. The Declaration describes how the rights in it are not to be enforced, but rather, represent a common standard of achievement for all peoples and all nations. Among these rights include the right to life, the right to not be tortured or enslaved, and to not be unfairly persecuted. The Declaration also grants freedom of thought, expression, and religion. The cultural rights laid out include the right to marriage, education, employment, food, and shelter. The Declaration was only a resolution adopted by the General Assembly, so in the legal sense, it is a non-binding document. In spite of this, since its adoption, it has grown to become a major factor in international law. In the wake of global terrorism and strengthening of national security measures, does universalism favour global progress? Does cultural relativism favour the same or antagonize it? These questions that judge the two varying ideologies could also synchronize them. Taken to its extreme, this relativism would pose a dangerous threat to the effectiveness of international law and the international system of human rights that has been painstakingly constructed over the decades. If cultural tradition alone governs State compliance with international standards, then widespread disregard, abuse and violation of human rights would be given legitimacy. Introspectively, the promotion and protection of human rights perceived as culturally relative would only be subject to State discretion, rather than international legal imperative. By rejecting or disregarding their legal obligation to promote and protect universal human rights, States advocating cultural relativism could raise their own cultural norms and particularities above international law and standards. The International Human Rights Day therefore provides a fine and fair platform for critical discussion and debate on these two opposing ideologies.
Outputs and Outcomes
This paper was conceptualized as a sound platform to bringing together a slate of scholars and experts in the human rights circle within the civil society. This is expected to shift the positions of ideologues with firm positions of conflict between universalism and cultural relativism in a world keen on globalization. But more than that, with the possible dawn of a new constitution for Kenya, it shall be interesting to see the position of the policy brief in regard to Kenya’s apparent religious antagonism to the constitution which seeks to shift socio-cultural positions among the people.
Certain logical core values, cultural themes and patterns of cultural adaptation unique to human rights have been presented in this paper, as identified in the conflict between universalism and cultural relativism. This paper intends to catalyze sensational debate and bring into play various viewpoints whether religious, political, or the Johari window perspective, given that cultural relativism is an exact antithesis to universalism.

Javas can be reached through:

Javas Bigambo is a senior consultant at Interthoughts Consulting, based in Nairobi Kenya.

THE NEXUS BETWEEN LAWS AND PRACTICE IN COUNTER TERRORISM: An Inquiry into the Challenges for International Cooperation with Respect to Security in Kenya

15 Jul


1 Jul


This paper sets out purposefully to address the overall regional and International Human Rights Systems: Challenges for Civil Society Participation, with a specific focus on Kenya and the East African Region. To achieve the above two objectives, this study is premised on three key assumptions. First, it assumes that human rights groups in Kenya have focused mainly on national issues such as constitutional review, judicial, prisons, and police reform among others, and have had little or no time to engage in a critical reflection on the concepts, theories, and ideas under-girding their advocacy work. Second, and as a corollary to the first assumption, the study assumes that human rights groups in the country operate on a thin range of ideas, concepts, strategies, and methodologies that are seldom updated to reflect the changing local, regional, and global socio-political contexts. Third and finally, it is assumed that on account of their over-reliance on unexamined assumptions, human rights groups in Kenya are unable to effectively respond to and adjust to new challenges such as issues of transitional justice spawned by the changing political context in the country.
Yet these challenges are not unique to Kenya. This paper considers how a human rights approach can contribute to the management of human rights in Kenya and east Africa, juxtaposed with the wider international community. The principles of equality and non-discrimination are also violated by the discriminatory exercise of the powers of the police in the criminal justice system. Thus, there are instances where police officers have abused their powers, such as the power to arrest, conduct searches and investigations, and use firearms. For example, the constitution requires that any person who is arrested or is detained by the police should be informed of the reasons for the arrest or detention and brought before a court “as soon as is reasonably practicable.” Further, the constitution provides that if this is not done, then such a person may be entitled to compensation for unlawful arrest or detention. One of the practical implications of these constitutional provisions is that the police may legally arrest and detain anybody without just cause for a period of up to twenty-four hours. Consequently, police officers frequently arrest and detain suspects they do not intend to charge with any particular offences, especially through a practice known as “the Friday Collection.” They make arrests on Friday evening, solicit bribes from those arrested and tell those who refuse that they cannot have access to a lawyer or magistrate until Monday. This is a violation of individuals’ rights.

To this end, non-state actors in Kenya confront abundant predicaments and contradictions as they endeavor to contextualize to the dual yet interlinked needs of ensuring respect for human rights and the liberty of individuals in modern and emerging democracies. Human rights discourse in Africa is a fairly new phenomenon that is scarcely two decades old. In fact, in most African states it can only be traced back to only a decade gone. This can only be linked to the emergence of multi-party politics/ democratic practice of governance in nearly all African states.
One of the biggest changes that have happened in Africa in the past decade is the growth, resilience and increasing confidence of human rights groups within a wider opening up of spaces for civil society in general. The civil society, by its nature, needs to be the midwives for the rights of all people at all times. However, most offer only lip service. The role of civil society organisations in any reform process in the country cannot be overstated. They are entrusted to advocate for and empower members of society on the relevance of reforms. In most instances civil society plays an oversight role thereby encouraging accountability and transparency within government. Human rights by their nature call for toleration of people’s liberties to the extent that they do not interfere with the rights and freedoms of others.

While a lot of progress in terms of general awareness, if not full protection, has been achieved in areas that are called first generation rights (i.e. civil and political rights) there is much more to be done in the areas of economic, social and cultural rights. The absolute poverty under which the majority of the people of the African continent live is the greatest violation of their rights as provided for in the UDHR, ACHPR, the ICCPR and other laws. It compromises their capacity to be effective citizens and makes them vulnerable to bad governance, sit-tight dictators, disease, want and all kinds of deprivations.


Poor human rights record is majorly a function of poverty, ignorance, disease, religious intolerance, internal conflicts, debt, bad management, corruption, the monopoly of power, the lack of judicial and press autonomy, and border conflicts (8). Poverty is certainly an endemic factor. More than seventy-five percent of the continent’s 700 million people live below the poverty line, and ten of the world’s thirteen poorest countries are in Africa. Other significant reasons include:
• undeveloped economies, with limited resource bases and insufficient employment/income opportunities for large segments of the population resulting in wide-spread poverty
• high population growth rates further straining the natural environment and local resources, while intensifying competition for resources
• ethnic diversity and/or regional factionalism promoting local/particularistic identifications, while hindering the development of a national identification;
• ethnic and/or class politics involving competition among leaders of different language, cultural, or regional populations for state positions of political and economic power with the spoils of victory going to supporters;
• lack of regime legitimacy as those large segments of the population not culturally and/or politically affiliated with the ruling elite and not sharing in the spoils refuse to recognize the regime as legitimate;
• resort to military/police force to maintain power by suppressing political opponents and disgruntled civilians;
• violation of economic, civil, and political rights by the regime on the pretext of “national security”. These various forms of economic breakdown and oppression violate rights to self-determination and often contribute to further human tragedy in the form of sickness, starvation, and lack of basic shelter. The breakdown of government institutions results in denials of civil rights, including the rights to privacy, fair trial, and freedom of movement. In many cases, the government is increasingly militarized, and police and judicial systems are corrupted. Abductions, arbitrary arrests, detentions without trial, political executions, assassinations, and torture often follow.
Generally, there is a strong interdependence between human rights violations and intractable conflict. Abuse of human rights often leads to conflict, and conflict typically results in human rights violations. It is not surprising, then, that human rights abuses are often at the center of wars and that protection of human rights is central to conflict resolution. It follows that conflict and human rights are inseparable imperatives. Violations of political and economic rights are the root causes of many crises. When rights to adequate food, housing, employment, and cultural life are denied, and large groups of people are excluded from the society’s decision-making processes, there is likely to be great social unrest. Such conditions often give rise to justice conflicts, in which parties demand that their basic needs be met.
Cases of torture, poor prison and police cell conditions, police brutality, unlawful arrests and detention, rape, and abuse of women are rampant. Although freedom of the press is constitutionally guaranteed, and independent newspapers and electronic media operate, the government has often arrested and detained journalists or seized news publications. The government has also been accused of using the courts to deny freedom to political opponents, charging them in court with unbailable offences, even if the evidence adduced lacks credibility, especially in the former regime.

Much of the discourse present focuses on episodes of human rights violations rather than focusing on the socio-economic and cultural contexts behind them. Human rights activists tend to focus on the atrocities of the state and human rights violations perpetrated by individuals rather than their sources just as there is undue emphasis on the generalized Western individualist-based conception of rights. The solutions offered by such an approach tend to be more of palliatives than effective cures of human rights violations. For example, there has been a concerted call among human rights organizations for a law providing for the castration of rapists. Whereas such calls may be justifiable in the Hammurabian sense of justice of an eye for an eye, the critical question to address the problem remains: what are the socio-economic contexts and cultural milieus that inform the perpetration of such heinous acts? What social forces drive a man to rape a woman, a toddler, or to commit incest? Unless these fundamental questions are systematically and objectively addressed through scientific research, it is highly unlikely that the evil of rape as well as the issue of polygamy and gender discrimination can be effectively dealt with beyond the palliatives of counseling of victims and provision of legal assistance the way the Kenya Anti-Rape Organization, Centre for Rights Education and Awareness and FIDA Kenya do.
There is urgent need to have the civil society adequately equipped with technical capacity, and resources so as to succeed in their programs. Some human rights organizations examined by this paper manifest a substantial lack of understanding of the environment within which they operate. This factor is one of the main explanatory variables of the limited impact of the activities of these social organizations. The problem is manifested in lack of technical skills, ignorance of sociological and cultural realities, and inadequate knowledge about the socio-cultural environment and structure of local authorities.
Since all these organization receive donor funding, there is need for them to engage in ethical, administrative and social accountability. This shall help them to win the trust of the citizens and shall be a proof of their earnestness.