Ubuntu in the Age of Human Rights

Ubuntu in the Age of Human Rights

PLO Lumumba
LLB LLM (Nairobi) PhD (Ghent)

Ndjodi Ndeunyema
B.Juris LLB (Namibia) BCL MPhil MSc DPhil (Oxon)

Caiphas Brewsters Soyapi
LLM LLD (North-West)Members of the LexisNexis Group worldwide
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Foreword
Ian McDougall

The historical roots of the rule of law are a frequent topic in my speeches
and articles. When I was asked to write a foreword for this volume on
ubuntu and its intersection with important global challenges in modern
times, I was struck by how ubuntu supports the theme that I advocate
regarding origins of the rule of law. The present work also brings the history of diverse and rich African cultures forward to the present.
It is remarkable how often we see consistent themes across many different traditions all around the world, which go to support one key underlying theme. No matter where you are from, no matter what social background you come from, deeply engrained in there is a basic connection toprinciples of the rule of law, a genuinely global concept. Ubuntu adds a
sophisticated layer of social interaction on top of those basic concepts:
how to address complex problems through a community view that saw,and sees, the individual as an important part of the whole community,and how the community gives strength to the individual.
The particularities of ubuntu were new to me, but the lessons they teachare familiar. Finding the patterns and consistent themes through history
and articulating their relevance to society at the time gives me hope forthe future. Hammurabi’s famous Code, which made the law visible toeveryone, was a literal embodiment of the pillar of law and was thus anearly example of the concept of the transparency and universal applicability of the law. The law could be literally touched and seen, and could
be read and understood by people before they acted, preventing a retroactive effect of the law.
The Magna Carta was an inflection point in history, when the English
nobility reacted to a series of violations of their rights and held KingJohn to a principle which established that the king himself was not above
the law of the land (Hammurabi had voluntarily made himself subject tothe law thousands of years before). This standard establishes the principle of equality under the law. Concepts we can identify as the rule oflaw in India can been seen in the Upanishads, a series of writings that
established a framework of justice which also touches on morality andv

Ubuntu in the Age of Human Rights
ethics – what one owes to others as well as oneself. (Note the similarity
to ubuntu here?) This concept establishes for the Hindu religion the concept of individual rights, weaving into justice and fairness for all – again,
what we would call equality under the law.
These examples highlighted some fundamentals about human natureand laid the groundwork for change and advancement. They brought theconcepts articulated therein to our societies and allow us to use themeven now to move ourselves and our communities towards the fairness
and stability any society needs to function and to flourish.
What we also see is room to expand our vision and include other important voices in this collection from history. This is where the contributionof ubuntu is being explored in this fascinating work. These chaptersaddress the concept of ubuntu, which, with no fixed definition, is a quiltof ideas and responsibilities of the individual to and within society. Onceubuntu is established as a concept to be followed, its application to waterrights, climate change, and other complex global problems comes into
focus.
Each contribution shows that ubuntu and its concepts predate colonialism and reflect the values and practices of many cultures and societies
before they were colonised. The concepts have the simplicity and power
to speak to a modern world. Like the Magna Carta, ubuntu tells us thatan individual is not – and should not be – above the rules the community
needs to prosper, the very heart of the concept of equality under the law.

vi

Preface

UbuntuUbuntu describes a set of universal moral principles guiding conduct thattends to preserve the integrity, stability and cohesion of a community
through which its members enjoy identity, freedom and dignity for themselves and behave in a way that tends to promote the well-being of others.
Ubuntu is linked to the UN’s Sustainable Development Goals1 and their
attainment. The present work will reveal and elaborate on the links
between ubuntu and the SDGs and will be updated annually, in line withemerging jurisprudence.
In the coming years, this work will provide the global legal fraternity with
substantial opportunities to enrich its own thinking by observing ubuntu
where it is manifest in judicial decision-making generally. Each contribution addresses the challenges of reconciling the collectivity of ubuntu with
the individuality of human rights, beginning with a systematic consideration of the concept of ubuntu and its application to water as human rightand to climate justice. Subsequent volumes will address ubuntu and land,ubuntu and resource rights, and ubuntu and restorative justice.

Judicial Action Group
This work is the brainchild of the Judicial Action Group (JAG), a judicial,peer-led African resource created in 2014 by Protimos. It is an independent mutual support network and thought-leadership resource for judges
in apex courts across Africa, which has become a collaborative professional body whose purpose is to ensure the rollout of judicial enrichment
and mutual support across African judiciaries.

_____________________

1 <https://www.undp.org/sustainable-development-goals>.

vii

Ubuntu in the Age of Human Rights
Members of the JAG confer regularly with one another to discuss complex legal issues and the professional challenges that arise in their jurisdictions.2 Current JAG members are•

Justice Tijjani Abubakar, Supreme Court of Nigeria•

Justice Barbara Ackah-Yensu, Supreme Court of Ghana•

Justice Amina Augie, Supreme Court of Nigeria, Co-Vice-Chair of JAG•

Justice Awa Bah, Supreme Court of the Gambia•

Justice Mohamed Elghannam, Court of Appeal, Egypt•

Judge Reginald Fynn, Court of Appeal, Sierra Leone, Co-Vice-Chairof JAG•

Justice Charles Hungwe, Supreme Court of Zimbabwe and Court ofAppeal of Lesotho•

Justice Esther Kisaakye, Supreme Court of Uganda•

Justice Jody Kollapen, Constitutional Court of South Africa•

Justice Isaac Lenaola, Supreme Court of Kenya, Chair of JAG•

Judge Molefi Makara, Court of Appeal of Lesotho•

Justice Thomas Masuku, Constitutional Court of Namibia•

Justice Carlos Mondlane, Supreme Court of Mozambique•

Justice Nigel Mutuna, Supreme Court of Zambia•

Judge Zione Ntaba, High Court of Malawi, Secretary of JAG.

ProtimosIn their work in Africa, Protimos lawyers enable impoverished client
communities to use their own laws to protect their social, economic andenvironmental interests. Our Community Legal Empowerment (CLE)
programme trains community-based lawyers to represent communities
and advise them on their rights to land and water resources and on climatechange, amongst other issues. In the JAG, senior judges consider emerging legal norms such as ubuntu, new ESG jurisprudence on climatechange liability, and parent-company liability for the actions of its African
subsidiaries. Our Green Light Programme (GLP) provides frameworkagreements that reflect respect for community rights and enables businesses to exploit natural resources in legal and equitable ways.
_____________________

2 The JAG meets quarterly online and annually in person for a multi-day conference in members consider a range of issues to strengthen their independence, integrity and efficiency. The JAG plans to expand its membership across Africa,
whilst developing its own resources to disperse benefits across each of their own
judicial systems.

viiiPreface
The long-term purpose of this publication is to collate and analyse ubuntubased thinking and thus to show how it can enrich both rights-based andcommercial jurisprudence immeasurably. Conjoining ubuntu with colonial legal systems could redress a series of historical imbalances, to thegeneral benefit of the global rule of law. We believe that an enriched andrigorous understanding of ubuntu will create a wider opportunity for its
application, as the principles of ESG become a discipline for the future.

ix

Contents

Foreword ..................................................................................................... v
Preface .......................................................................................................vii
About the authors.................................................................................... xiii
1

The imperative of ubuntu in contemporary judicial
decision-making: A case for the utility of ubuntu
in understanding rights
PLO Lumumba
1.1 Introduction................................................................................... 1
1.2 Origins of ubuntu ..........................................................................2
1.2.1 Values and principles of ubuntu .........................................2
1.3 Ubuntu and African traditional justice systems ...........................4
1.4 Ubuntu in pre-colonial Africa: Colonialism and its effects .......... 5
1.5 Ubuntu in post-colonial Africa: A solution for Africa ................... 7
1.6 Ubuntu and restorative justice ......................................................91.6.1 Ubuntu and the South African legal system .......................91.6.2 Utu/ubuntu and the Tanzanian legal system ................... 12
1.6.3 Utu/ubuntu: A Kenyan experience ................................... 14
1.6.4 Rwanda and Burundi legal systems.................................. 21
1.7 Ubuntu and the use of natural resources ................................... 24
1.8 Conclusion .................................................................................. 28

2

Ubuntu and climate justice
Caiphas Brewsters Soyapi
2.1 Introduction................................................................................. 31
2.2 Colonialism and capitalism as the grand context for(environmental) injustice ............................................................33
2.3 Climate justice: Key issues ..........................................................35
2.3.1 Fairness ............................................................................ 36
2.3.1.1 Historical pollution ............................................ 36
2.3.1.1 Historical pollution ............................................ 36
2.3.1.2 Participation ........................................................ 37
2.3.1.3 Intergenerational equity...................................... 37xi

Ubuntu in the Age of Human Rights
2.3.2 Financing.......................................................................... 38
2.3.2.1 Accountability..................................................... 38
2.3.2.2 Vulnerability and capacity.................................. 39
2.3.2.3 Commitments and access ................................... 39
2.4 Adjudicating climate justice ....................................................... 40
2.4.1 Luciano Lliuya v RWE AG ............................................... 41
2.4.2 The ITLOS and ICJ advisory opinions ............................ 43
2.4.3 The utility of an expository justice model for
adjudicating climate justice ..............................................45
2.5 Ubuntu ecosophy ........................................................................ 46
2.5.1 Solidarity .......................................................................... 48
2.5.1.1 The need for collective sufficiency ..................... 48
2.5.1.2 Epistemic justice through ubuntu....................... 51
2.5.2 Due diligence ..................................................................... 55
2.5.2.1 Intergenerational equity...................................... 55
2.5.2.2 Stewardship ......................................................... 57
2.6 Outlook ....................................................................................... 58
3

The value of ubuntu in the pursuit of the human rightto waterNdjodi Ndeunyema
3.1 Introduction: A brief profile of water in Africa ........................... 61
3.2 Ubuntu: etymology and definition ............................................. 63
3.2.1 Ubuntu as decolonial thought ......................................... 63
3.2.2 Etymology of ubuntu ........................................................65
3.2.3 Defining ubuntu ................................................................ 67
3.2.4 The principles of ubuntu ................................................... 71
3.2.4.1 Community .......................................................... 72
3.2.4.2 Interdependence ................................................. 74
3.2.4.3 Solidarity ............................................................. 75
3.2.4.4 Responsibility ...................................................... 75
3.2.4.5 Dignity ................................................................. 76
3.3 A normative analysis of water as a human right ......................... 77
3.3.1 Water as a human right in African national
constitutions......................................................................78
3.3.2 Water as an express human right underinternational law ............................................................... 81
3.3.3 Water as an implied human right underinternational law .............................................................. 86
3.3.3.1 Implying water under the ICESCR .................... 86
3.3.3.2 Implying water under the ICCPR ....................... 88
3.3.3.3 Implying water under the African Charter ........ 90
3.4 Invoking ubuntu to imply water................................................. 94
3.5 Conclusion .................................................................................. 96xii

About the authors

PLO Lumumba
PLO Lumumba is a Professor of Public
Law, a holder of an LLD degree on the
Law of the Sea from the University of
Ghent, Belgium, and of LLB and LLM
degrees from the University of Nairobi.
He holds an honorary DLitt. degree fromthe University of Cape Coast in Ghana
and an honorary DSc degree from Bells
University of Technology in Nigeria.
Professor Lumumba has been trained in
Humans Rights at the Institute ofAdvanced Legal Studies University of
London in England, Humanitarian Law
at the Raoul Wallenberg Institute of the University of Lund in Sweden
and International Humanitarian Law in Geneva, Switzerland. He is an
Advocate of the High Courts of Kenya and Tanganyika and a Certified
Mediator. He is also a Fellow of the Institute of Certified Public Secretaries of Kenya FCPS (K), a Fellow of the Kenya Institute of Management (FKIM) and Honorary Fellow of the African Academy of Sciences(FAAS). He is the Chairman of Farafina Investment Group in Monrovia,
Liberia and of the Economic Strategic Growth and Development Initiative
for Africa based in Nigeria.
He is the immediate former Director and Chief Executive Officer of the
Kenya School of Law, a former Secretary of the Constitution of Kenya
Review Commission and a former Director of the defunct Kenya AntiCorruption Commission (KACC). He is the Founding Trustee of theAfrican Institute for Leaders and Leadership (AILL) and founding Chairman of the Association of the Citizens Against Corruption (ACAC). He
was the Founding Dean, Kabarak University School of Law, and is aformer lecturer at the University of Nairobi (UON), the United Statesxiii

Ubuntu in the Age of Human Rights
International University (USIU Africa) and Widener University USA(Nairobi Summer School).
Professor Lumumba is a renowned legal practitioner who has written
several books including Criminal Procedure in Kenya, An Outline of
Judicial Review in Kenya, Kenya’s Long Search for a Constitution: The
Postponed Promise and An Introduction to Judicial Review and Administrative Law in Kenya. He has published numerous articles in refereed
journals and several book chapters. He has also edited several books including Devolution in Kenya (with Professor Mbondenyi and Dr Kabau),
The Constitution of Kenya: Contemporary Readings (with Professor MK
Mbondenyi and SO Odero). He has co-authored The Constitution of
Kenya, 2010 An Introductory Commentary (with Dr Luis Franceschi)
and several books on ethics. Professor Lumumba’s non-legal books include
Swearing by Kenya, A Call for Political Hygiene in Kenya, The Searching Soul, Sanitizing Kenyan Politics, Mhh Africa! (in Kiswahili), Ang’oMarach (in Dholuo) and Watim Ang’o (also in Dholuo). He has also coauthored thirteen other books on Integrity as School Series. He recently
ventured into fiction with his book Stolen Moments and translated theKiswahili play Kigogo into English as The Leader.
In 2004, Professor Lumumba received a commendation from the Kenya
Scouts Association for service to society. In 2011, Bishop Okullu of theCollege of Theology of the Great Lakes University of Kisumu awarded
him the order of St Paul the Apostle for restoration of good governanceand right values in society. In 2012, the East African Association of AntiCorruption Authorities recognised him for his valuable and exemplarycontribution in the fight against corruption.
Professor Lumumba has been recognised by the International Commission of Jurists (Kenya Section) and the Law Society of Kenya for his
exemplary contribution to the legal profession. He was recognised by the
Kenya–USA Association for the Martin Luther King Jnr., LeadershipAward in 1996 and was received the 2008 Martin Luther King Africa
Salute to Greatness Award from the Martin Luther King Jr. Africa Foundation. He has also been included in the Marquis Who’s Who in theWorld and was the Distinguished Mwalimu Julius Nyerere Lecturer at
the University of Dar es Salaam for 2014 and the 11th Kwame Nkrumah
Lecturer at the University of Cape Coast in Ghana, in 2016. On 27 May
2017, he was invested Chief Tamba Taylor of Liberia for his PanAfricanist activities. He was the 5th Abram Tiro Onkgopotse Lecturer at
the University of Limpopo in South Africa, in 2017, and the 5th Apollo
Milton Obote Lecturer, in 2017. He was the Nelson Mandela Centenary
Memorial Lecturer at Walter Sisulu University in South Africa, in 2018,xiv

About the authors
and the 2nd Ray Phiri Memorial Lecturer at the University of Mpumalanga, in 2019. He gave the inaugural Samora Machel Memorial Lecturein Maputo, Mozambique, in 2021. He was the 10th Saraki Memorial
Lecturer in Abuja, Nigeria, in 2022, the 9th Sir Ahmadu Bello Memorial
Lecturer in Lafia Nasarawa State, Nigeria, in 2023, and the 10th Professor
J Atta Mills Lecturer at Kwame Nkrumah University of Science & Technology in Kumasi, Ghana, also in 2023.
In 2017, Professor Lumumba received a Lifetime Achievement Award for
Patriotism and Advocacy from the African Forum and was recognised by
New African Magazine as one of the 100 most influential Africans. In
January 2018, he received the following awards and recognition:•

African Luminary Award from the African Cultural Association in the
United States of America•

Freedom of the City of Lowell in the Commonwealth of Massachusettsin the United States of America for his role in the fight against corruption and bad governance in Africa•

Recognition from the House of Representatives of the Commonwealthof Massachusetts in the United States of America for exemplary workin the fight against corruption and bad governance in Africa.

Professor Lumumba practises law with Lumumba and Lumumba Advocates and coordinates activities under the aegis of the PLO Lumumba
Foundation.

Caiphas Brewsters Soyapi
Caiphas is an Associate Professor of Law
at North-West University (NWU), South
Africa, but is presently undertaking a research Fellowship at the Max Planck
Institute for Comparative Public Law andInternational
Law
inHeidelberg,
Germany. His current research is focused
primarily on environmental constitutionalism in Africa, broadly exploringrights-based approaches to environmental protection, the place of international environmental law principles
in African courts and African judicial
environmentalism.

xv

Ubuntu in the Age of Human Rights

Ndjodi Ndeunyema
Dr Ndjodi Ndeunyema is a practising
solicitor in England and Wales and an
International Strategy Forum Fellow(Africa) for 2023. Before transitioning
into legal practice, Ndjodi was a Modern
Law Review Early Career Research
Fellow at the University of Oxford after
defending his DPhil in Law without
corrections and being awarded the 2021
Professor Subedi Prize for the best
Oxford University law doctoral thesis.
He subsequently published his book ReInvigorating Ubuntu Through Water: A Human Right to Water under
the Namibian Constitution, with Pretoria University Law Press.
Ndjodi completed an MPhil degree in Law, a BCL (LLM equivalent), andan MSc degree in Criminology and Criminal Justice while studying at
Oxford as a Rhodes Scholar. His undergraduate BJuris and LLB degrees
were awarded by the University of Namibia. From 2017 to 2021, he was
Research Director at the Oxford Human Rights Hub and a founding editor of the University of Oxford Human Rights Hub Journal and served
as an editor of the Oxford University Commonwealth Law Journal from2016 to 2019. His scholarship has been published in leading journals including the Journal of African Law, Michigan Journal of InternationalLaw, and Global Journal of Comparative Law. He has previously served
as a Legal Fellow at the African Court of Human and Peoples’ Rights inArusha, Tanzania. Ndjodi’s contributions to this publication represent
his own views.

xvi

1

The imperative of ubuntu in contemporary
judicial decision-making: A case for the utilityof ubuntu in understanding rights
PLO Lumumba

1.1 Introduction
Life in Africa has always been centred on the community. African people
have always viewed community as a group of people working collectively
in order to construct an interdependent society of individuals living
together in harmony.1 Individuals do not exist alone in African society
but depend on the community for their actualisation as part of a greatercollective.
In the African approach to human existence, therefore, individuals relyon the community as much as the community relies on them. This isencapsulated in the philosophy of ubuntu.
The term ubuntu derives from a group of languages from sub-SaharanAfrica known as the Bantu languages. Among the plethora of Bantu
languages, the term appears in many variations, all of which refer to thesame idea. The Zulu and Xhosa people of South Africa call it ubuntu, as
do the people of Rwanda and Burundi. The Abaluhya communities of
Kenya call it omundu. Swahili speakers call it utu, while the Setswana of
Botswana call it botho. These are all variations of the same word, butthey encapsulate the same philosophy: the quality or essence of being aperson that is part of a community.
The term ubuntu does not have a direct English translation, and thephilosophy is perhaps best encapsulated by the Zulu expression umuntu
ngumuntu ngabantu, which loosely translates to a person is a person
through other people.

_____________________

1 Mkhusenli Tyani ‘An African understanding of community’ (2019) para. 2<https://www.academia.edu/11255597/An_African_understanding_of_community> (accessed 2 October 2023).

1

Ubuntu in the Age of Human Rights
John Mbiti explains the concept of ubuntu succinctly thus:
What happens to the individual happens to the whole group, and whatever
happens to the whole group, community or country happens to the individual.
People, country, environment and spirituality are intricately related. The individual can only say: ‘I am because we are; and since we are, therefore I am’.2

1.2 Origins of ubuntu
Victor Oladokun writes that language is more than a mere means ofcommunication: it is a repository of the values, customs and culture of apeople, an embodiment of who they are.3 The philosophy of ubuntu isreflected in many African languages.
Among the Shona people of Zimbabwe, the phrase munhu munhu nekuda
kwevanhu has the same meaning as the Kikuyu saying ndi ni tondu
wanyu, which is to say ‘I am because we are, and since we are, therefore
I am’.
The key principles of ubuntu are enshrined in the Bantu languages themselves. The languages of communities practising the ideals of ubuntu arelittered with phrases denoting the philosophy and its application to every
aspect of human existence.
Among non-Bantu speakers, the Luo of Kenya, a Nilotic-languagespeaking people, say an dhano nikech wantie, which translates to ‘myhumanity comes from those around me’. The Amharic people of Ethiopia,
whose language is Semitic, have a proverb that says der biyaber anbesa
yasir, which translates to ‘when spider webs unite, they can trap a lion’.
This proverb reflects the idea of strength in unity that pervades theircommunity.4
From the foregoing, it is evident that the philosophy of ubuntu is woven
into the fabric of African society, even among non-Bantu African peoples.

1.2.1 Values and principles of ubuntu
Although the values and practices among the various African ethnic
groups may vary, the overarching principle remains the same: the individual human being is part of a larger and more significant relational,
communal, societal, environmental and spiritual world.5_____________________

2 John Mbiti African Religions and Philosophy (Heinemann, 1969) 106.
3 Victor Oladokun ‘Why African languages matter’ New African Magazine 15 March2022 <https://newafricanmagazine.com/27937> (accessed 2 October 2023).
4 Jacob Rugare Mugumbate et al. ‘Understanding ubuntu and its contribution tosocial work education in Africa and other regions of the world’ (2023) Social
Work Education 1 <DOI: 10.1080/02615479.2023.2168638>.
5 Ibid.

2

The imperative of ubuntu in contemporary judicial decision-making
Professor James Kamwachale Khomba describes ubuntu as the capacity
in an African culture to express compassion, reciprocation, dignity,
humanity and mutuality in the interests of building and maintaining communities with justice and mutual caring.6 He further states that Africans
are not rugged individuals but a part of a larger community and therefore
that all challenges are overcome only through community solidarity.7
Ubuntu manifests in African societies’ traditional approach to parenting.
Blessing Shambare states that while African societies are far from homogeneous with regard to cultural practices, there is a common ground of
consciousness shared among the peoples of Africa.8 The communal
approach to parenting among African societies is a manifestation of theprinciples of ubuntu. Children belong to the community and their wellbeing is beneficial to the whole community in that it safeguards the community’s future. As such, the responsibility of care, nurture and instructionis undertaken collectively by the members of the community.
Ubuntu envisages the good of the community and the good of the individual as being mutually inclusive. It emphasises the importance of community and collective well-being. It encourages individuals to view themselves
as part of a larger whole and to consider the welfare of the community
above their own self-interest. By emphasising our interconnectedness,ubuntu encourages members of a community to consider the effect of
their individual actions on the well-being of others in the community.
Ubuntu also encourages a communal approach to the navigation of thevarious milestones of life. The birth of a new baby is a communal celebration. Likewise, the death of a member of the community is mournedby the community. Marriage is viewed as the joining of two families, and,by extension, two communities, and is celebrated as such.
Collective responsibility is encouraged under the ubuntu philosophy.
Actions and measures taken for the betterment of a community areviewed as a shared duty, with every member of the community, fromoldest to youngest, having his or her part to play in the collective effort.

_____________________

6 James Kamwachale Khomba ‘Redesigning the balanced scorecard model: An
African perspective’ (PhD thesis, University of Pretoria, 2011) 127.
7 Ibid.
8 Blessing Shambare ‘The ubuntu parenting: Kairos consideration for the 21st century dynamics and globalization’, Parenting: Challenges of Child Rearing in a
Changing Society (IntechOpen 2023) <https://www.intechopen.com/chapters/
78649> (accessed 3 October 2023).

3

Ubuntu in the Age of Human Rights

1.3 Ubuntu and African traditional justice systems
Writing in the late 1950s, during a time when Africa was undergoing aparadigm shift in the social, economic and political arena, author Chinua
Achebe, in his novel Things Fall Apart, describes a society at a crossroads.9 The Umuofian (African) society is described as being engulfed by
the new ways of the arriving Europeans whilst at the same time losing its
traditional way of life.
Achebe narrates the events of a trial conducted in accordance with Umuofian traditions. It is the trial of a man accused of physically harassing
his wife. For nine years, the cruel man abused his wife. When his in-laws
can no longer bear it, they go to the man’s compound, beat him up andtake the wife away. After some time, the man goes to his in-laws anddemands the bride price back, which leads to the trial. The trial is presided over by nine of the greatest masked spirits in the clan, who are
known as the egwugwu, in front of titled men and elders. The nine egwugwu represent the dead fathers of the nine villages of Umuofia. From afar,
the villagers follow the proceedings. After the trial, the man is ordered totake a pot of palm wine to his in-laws and beg for his wife to be returned
to him. He is reminded that it is not bravery for a man to fight a woman.
In the last chapters of this great book, Chinua Achebe tells of yet another
trial, but this time conducted by the recently installed European District
Commissioner.10 The accused are the elders and leaders of Umuofia,
charged with assaulting other people and destroying their property. The
men are handcuffed and beaten and their heads shaved by the District
Commissioner’s men. They are locked in cells only to be released upon
payment of an imposed fine. At the end of the book, the main character
Okonkwo, sensing that the Umuofians will not rise up against the whiteman, hangs himself, sending the message that there is a new dawn in theland of Umuofia and that those who cannot adapt to the new dispensation
will perish.11
The two stories demonstrate the key disparities between African andEuropean ways of solving disputes and conflicts. Where a crime is committed, European legal systems attempt to establish who committed it,what laws were broken and what should be done to punish the offender.
In contrast, African justice systems focus on who was harmed, the nature_____________________

9 W Rodney How Europe Underdeveloped Africa (London: Verso, 2018, originallypublished 1972).
10 Chinua Achebe Things Fall Apart (Heinemann, 1958) Chap. 23, 175–180.
11 PLO Lumumba ‘The state of African politics’, speech delivered at Harvard
University, Massachusetts (12 October 2018) <https://www.youtube.com/
watch?v=ZGXikZP5JAk&t=271s> (accessed 8 October 2023).

4

The imperative of ubuntu in contemporary judicial decision-makingof the harm, what needs to be done to make it right or to repair the harm,
the person responsible for this repair, and how the delinquent can be
returned to law-abiding life. In African justice systems, the offending
person is not solely responsible for atoning for and repairing the harm heor she has caused; that responsibility also falls on his or her family andon the clan as a whole.
Other early African writers such as Kenya’s NgŸgś wa Thiong’o tell thesame story: an African continent trying to find its new identity amidst
the remnants of departing Europeans.12 Indeed, most of the African literature from the colonial period provides the reader with samples of African traditional culture at its best, with all its virtues and foibles. Amongthese traditional ways of life are salient instances of conflict resolution atdomestic, personal, and intercultural level.13
There are several conflict resolution mechanisms among traditional African societies. These mechanisms include mediation, negotiation, adjudication and reconciliation and were often presided over by societal figureheads such as kings, chiefs, ancestors and elders.
Regardless of the mechanism used, the overriding objective is always toprovide the parties involved with an opportunity to interact and build
consensus.
The aim of traditional dispute resolution mechanisms is restorative justice. Restorative justice seeks to reintegrate offending individuals into
their community by restoring their relationship with the survivors andcommunity at large. It seeks to bring perpetrators and survivors together
again.
The foundational basis underlying traditional African justice systems isthe concept of ubuntu, also known as botho or utu or hunhu. The normative ubuntu values promote social cohesion and the general well-being ofsociety.

1.4 Ubuntu in pre-colonial Africa: Colonialism and its
effects
There can be no discourse on the cultures and practices of the people of
the African continent without due recognition of the manner in which
the colonial enterprise affected people. Part of the process of colonisation_____________________

12 See generally NgŸgś wa Thiong’o Weep Not, Child (Heinemann, 1964), The River
Between (Heinemann, 1965), The Black Hermit (Heinemann, 1968), and A Grainof Wheat (Heinemann, 1967).
13 SB Olorounto ‘The notion of conflict in Chinua Achebe’s novels’ (1986) 1(3)Obsidian II 17–36 <http://www.jstor.org/stable/44484839>.

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Ubuntu in the Age of Human Rights
was a concerted condescending effort to ‘civilise’ the ‘savage’ ways ofAfrican people.14
Furthermore, the ‘divide-and-conquer’ methods employed by colonisers
meant that the people of Africa were pitted against each other, with theirvery survival dependent on their ability to kowtow to colonial overlords,
often to the detriment of their fellow Africans. The administrative structures imposed by colonial regimes eschewed the traditional principles
and ideals of African people, which were grounded in ubuntu, in favourof the more individualistic Western approach.
This is perhaps best captured by the introduction of individual property
tenure systems and their effect on traditional African property regimes.
HWO Okoth-Ogendo, in his seminal work ‘The tragic African commons’,15
writes that among traditional African communities land was not viewed
as a mere resource but as an extension of the community itself. It belonged
to the whole community not only as it was constituted at a given moment
but also as a beneficiary of past members of the community and as a custodian for future generations.
There existed adequate mechanisms to determine allocation and usage.
There were means to resolve any disputes that might have arisen. There
were no formal delineations of boundaries, and access was simply predicated on membership to the community. The use of resources such as
land was guided by ubuntu, which made those resources sustainable overmultiple generations owing to the due regard given to ensuring that theresources served the interests of the community over those of the individual.
With the advent of colonialism, however, colonial regimes completely
and deliberately disregarded this form of tenure and declared the land
unoccupied under the doctrine of terra nullius (land belonging to no one).
They then introduced legislation allocating radical title to these lands tothemselves and proceeded to administer them in accordance with theirindividual-centric property tenure systems. Under such systems, ubuntu
was discarded and individualism encouraged.

Ubuntu and the struggle for liberation
The struggle for independence from colonial overlords was replete withrhetoric founded on ubuntu. Luminaries such as Kwame N’Krumah_____________________

14 Michael Onyebuchi Eze ‘I am because you are’ (Oct.–Dec. 2011) UNESCO Courier<https://en.unesco.org/courier/octobre-decembre-2011/i-am-because-you-are>(accessed 3 October 2023).
15 HWO Okoth-Ogendo ‘The tragic African commons: A century of expropriation,
suppression and subversion’ (2003) University of Nairobi Law Journal 1.

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The imperative of ubuntu in contemporary judicial decision-making
championed Pan-Africanism and insisted that Ghana’s pioneering liberation was meaningless unless it was linked to the total liberation of Africa.
Mwalimu Julius Nyerere of Tanzania promulgated the ujamaa ideology
upon the attainment of Tanzania’s independence.

Ubuntu and individualism
The European invasion of Africa had a significant impact on Africa. It hada negative impact on African cultures, encouraging Western civilisation
among the locals while assimilating them. As a result, Africa’s identity
has been weakened, with the fundamental morals and values that guided
existence tossed out the window.
Individualism is a notion that glorifies the self and puts the autonomous
individual at the centre point of value in society.16 This westernised wayof thinking is individual-based and regards personal interests as more
important than any other. Individualism rarely goes beyond self, andwhen it does it is either limited to one’s own family or transactional.
Furthermore, individualism contradicts the African values of communalism and care, whereas ubuntu emphasises that people’s identities areconstantly developing in the context of their reciprocal relationships withothers, and that supporting and nurturing others enhances one’s own
identity and life quality.17
Tutu, in describing the quintessential role of an individual within ubuntu,
notes that
A person with Ubuntu is open and available to others, affirming of others,
does not feel threatened that others are able and good, for he or she has aproper self-assurance that comes from knowing that he or she belongs in agreater whole and is diminished when others are humiliated or diminished,when others are tortured or oppressed.18

1.5 Ubuntu in post-colonial Africa: A solution for Africa
Ubuntu is a deeply rooted value system in African societies. Although theterm ubuntu is predominantly used to describe the quality or essence ofbeing a person amongst many sub-Saharan tribes of the Bantu language_____________________

16 Sabelo Mhlambi ‘From rationality to relationality: Ubuntu as an ethical andhuman rights framework for artificial intelligence governance’, Carr Center Discussion Paper 2020-009 (2020).
17 B Mayaka and R Truell R ‘Ubuntu and is potential impact on international social
work’ (2021) 64(5) International Social Work 646–662 <https://journals.sagepub.com/toc/iswb/64/5> (accessed 30 September 2023).
18 Desmond Tutu No Future Without Forgiveness (New York, NY: Random House,1999).

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Ubuntu in the Age of Human Rights
family, the concept of ubuntu is to be found in diverse forms in manysocieties throughout Africa.
Ubuntu generally is viewed and understood, correctly, as an African concept, a cultural world view that tries to capture the essence of what itmeans to be human. Even though there is a diversity of African cultures,
there are commonalities to be found among them in areas such as value
system, beliefs, practices and others. Ubuntu is an old philosophy andway of life that has for many centuries sustained African communities in
sub-Saharan Africa in particular and in Africa generally.19
On the other hand, the propounders of the incompatibility school, whohave constantly argued that ubuntu is mundane and incompatible withthe changing dynamics of modern Africa, have disregarded the hallmarksof ubuntu, supporting a Western culture that promotes individualism
and unequal distribution of wealth.20
A pro-ubuntu perspective maintains that the philosophy of ubuntu isnow, more than ever, relevant to Africa. Furthermore, ubuntu has taught
us that our interdependence is inevitable and that whatever happens to
one of us happens to all us.
African people suffered many atrocities in pre-colonial Africa, were forced
into slavery, colonised and are now subjected to neo-colonialism. The
brainwashing by colonial powers gave Africans a false sense of being.
They were made to believe that they were a lesser – a ‘useless’ – people.
Colonial overlords despised and degraded African cultures and imposed
their civilisation on African people, in many ways erasing the traditional
African way of life. The unfortunate result of this is that many African
people today hold Western cultures as being superior to the traditional
African way of life.
Things have changed! Africa is now aware, Africa is smart, and Africa hasrealised its worth. Africans are not a lesser race; they are just as humanas any other race in the world. Ubuntu teaches us this and tells us thatwhen we connect to others on the basis of our common humanity, when_____________________

19 M Mnyaka and M Motlhabi ‘The African concept of Ubuntu/Botho and its sociomoral significance’ (2005) 3(2) Black Theology: An International Journal 215–
237: T Murithi ‘An African perspective on peace education: Ubuntu lessons in reconciliation’ (2009) 55 International Review of Education 221–233; MB Ramore‘The death of democracy and the resurrection of timocracy’ (2010) 39(3) Journalof Moral Education 291–303.
20 Peter Mwipikeni ‘Ubuntu and the modern society’ (2018) 37(3) South African
Journal of Philosophy 322–334.

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The imperative of ubuntu in contemporary judicial decision-making
we truly regard self and other as one, all of our relationships will flourish.21
This rekindling of ubuntu will help address Africa’s problems of hunger,
isolation, deprivation, poverty and so on. Fostering this philosophy will
require the inculcation of communalism, brotherly and sisterly concern,
cooperation, care and sharing.

1.6 Ubuntu and restorative justice
When conflicts arise, ubuntu encourages a restorative approach to resolving disputes. This approach involves seeking solutions that restore
harmony and balance within the community rather than punitive measures. Restorative justice practices can help mend relationships and promote a feeling of community.
Despite the onslaught of European legal systems such as common law,
civil law and Roman-Dutch law, which are employed in the majority of
African countries, traditional dispute settlement procedures have remained resilient. Communities continue to apply the values and principles of traditional justice systems in settling disputes even today. Thisis because these systems are based on the normative concepts of utu(humanness). The central element of these systems is the fostering ofrestorative justice, with the primary goal of restoring relationships rather
than allocating rights amongst disputants.22

1.6.1 Ubuntu and the South African legal system
As already stated, ubuntu is a term from the Nguni group of languages,
which includes Xhosa, Zulu, Ndebele, Swati, Hlubi, Phuthi, Bhaca, Lala,
Nhlangwini. It is no surprise, therefore, that most of the literature on
ubuntu emanates from South Africa and mostly makes reference to thepeople of southern Africa. The works of Archbishop Desmond Tutu areparticularly instructive on ubuntu in the South African context. The works
and life of President Nelson Rolihlahla Mandela exemplified the values
and principles of ubuntu.23 The Interim Constitution of South Africa24_____________________

21 Gabriella Beckles-Raymond Ubuntu: The African Practice of Living Life Well,
Together (2020).
22 ICJ ‘Interface between formal and informal justice systems in Kenya’ (ICJ, 2011)32.
23 According to US President Barrack Obama, Mandela ‘understood the ties thatbind the human spirit’. See B LoGiurato ‘Here is Barack Obama’s powerful tributeto Nelson Mandela’ Business Insider (10 December 2013) <https://www.businessinsider.com/obama-nelson-mandela-memorial-service-speech-full-text2013-12> (accessed 8 October 2023).

9

Ubuntu in the Age of Human Rights
was perhaps the first legal text to make direct reference to the termubuntu. In its postamble, it declared that
The adoption of this Constitution lays the secure foundation for the people ofSouth Africa to transcend the divisions and strife of the past, which generated
gross violations of human rights, the transgression of humanitarian principles
in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can
now be addressed on the basis that there is a need for understanding but not
for vengeance, a need for reparation but not for retaliation, a need for ubuntu
but not for victimisation [emphasis added].

This historic declaration marked the beginning of the incorporation of
ubuntu normative values into South Africa’s legal system. It was the firsttime in South Africa’s modern history that a traditional African concept– ubuntu – was incorporated in the state’s official law. Not long after, theConstitutional Court in the much-cited case of S v Makwanyane,25 in
finding that the death penalty was unconstitutional, illustrated the principle of ubuntu to define constitutional values.
Central to this finding were the ideas of humaneness, social justice andrehabilitation. Capital punishment was incompatible with the principleof ubuntu in that it offered no chance for rehabilitation – it was cruel andinhumane.26 Mokgoro J describes ubuntu as embodying the key values of‘group solidarity’, ‘conformity to basic norms’ and ‘collective unity’.27 The
court in S v Makwanyane used an adapted version of the Savignian
model of constitutional interpretation to arrive at its unanimous findingthat the death penalty was unconstitutional.
Apart from the textual and purposive modes of interpretation, the court
also employed systematic interpretation and historical situating. Systematic interpretation is a manifestation of contextualism, calling for anunderstanding of a specific provision in the light of the text or instrument as a whole and of extratextual indicia. The court held that a constitutional provision should not be construed in isolation but in its context,
which includes the history and background of the provision.
Historical situating method, on the other hand, involves situating a provision in the tradition from which it emerged and allowing qualified
recourse to information concerning the genesis of the text in which theprovision occurs and concerning the provision itself. The court held that_____________________

24 Constitution of the Republic of South Africa Act 200 of 1993 <http://www.gov.za/
documents/constitution/constitution-republic-south-africa-act-200-1993>(accessed 5 October 2023).
25 S v Makwanyane 1995 (3) SA 391 (CC).
26 Ibid. paras 215 and 235.
27 Ibid. para. 308.

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The imperative of ubuntu in contemporary judicial decision-making
the history and background of the adoption of ubuntu, together with theother provisions of the Constitution itself, in particular the provisions of
the Bill of Rights, must be taken into account when interpreting constitutional provisions.28 It is worth noting, however, that even though thejudgment was unanimous the reasoning of the judges differed. Six of thejudges premised their arguments on the right to life, with two reasoningthat this right could not be qualified. Three based their findings on theview that the death penalty constituted cruel and inhumane punishment,
while two said that the death penalty violated the right to dignity andequality and was therefore arbitrary and unconstitutional.
Unlike the Interim Constitution, the 1996 Constitution of South Africa
does not expressly mention ubuntu, although the concept of ubuntu permeates that Constitution generally and is conspicuously manifested in
Chapter Two, which embodies the entrenched fundamental human rights
and freedoms. Read as whole, the 1996 Constitution exemplifies ubuntu’s
ideas of humanness, social justice and fairness.
Later decisions such as that in Port Elizabeth Municipality v Various
Occupiers29 have promoted the thematic development of the concept ofubuntu in the direction of restorative justice. The trajectory of the judicial application of the concept of ubuntu in South Africa has been linked
to restorative justice. Scholars maintain that restorative justice has been
the driving force behind the application of ubuntu to several divergent
areas of law such as criminal law, defamation law and eviction cases.30
Other scholars have attempted to link the concept of ubuntu as a notionof African communal justice to Rawls’s idea of justice as fairness.31 Thisschool of thought argues that Rawls’s theory of justice, in which the subject of justice is the basic structure of a society through which individuals
cooperate as free and equal persons, bears striking similarities to thenormative values of ubuntu.
The concept of ubuntu being applied in judicial decisions has not been
without criticism, especially as it was used in Makwanyane. The conceptof ubuntu as a legal notion has been attacked on various points, ranging
from ‘its ambiguity to its redundancy, to perceptions of dichotomies, and_____________________

28 A Klaasen ‘Constitutional interpretation in the so-called “hard cases”: Revisiting
S v Makwanyane’ (2017) 50(1) De Jure <http://dx.doi.org/10.17159/2225-7160/
2017/v50n1a1>.
29 2005 (1) SA 217 (CC).
30 C Himonga, C Taylor and A Pope ‘Reflections on judicial views of Ubuntu’ (2013)
67 Potchefstroom Electronic Law Journal <https://www.saflii.org/za/journals/
PER/2013/67.html> (accessed 1 October 2023).
31 M Letseka ‘Ubuntu and justice as fairness’ (2014) 5(9) Mediterranean Journal ofSocial Sciences 544; Himonga et al. (n. 30).

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Ubuntu in the Age of Human Rights
issues of exclusion’.32 Other scholars have also maintained the position
that ubuntu is linked with ‘public morality’ in a manner that compromises
human rights adjudication and, in particular, the rights of minorities.33
When the concept of ubuntu is examined through the eyes of the South
African courts and the manner in which it has been implemented is considered, it is evident that ubuntu can be applied to virtually any area oflaw. The hundreds of cases from South Africa’s judicial system making
reference to ubuntu contribute to the development of the concept. As itis, the concept of ubuntu is sufficiently broad to have far-reaching application in our legal systems:
The secure and progressive development of our legal system demands that it
draw the best from all the streams of justice in our country. This would
include benefiting from the learning of those judges who in the previous era
managed to articulate a sense of justice that transcended the limits of race, as
well as acknowledging the challenging writings of academics …34

1.6.2 Utu/ubuntu and the Tanzanian legal system
In Kiswahili, a language spoken throughout most of East Africa, particularly Kenya, Uganda and Tanzania, ubuntu translates to utu, which means
humanness. It is a concept that condemns acts and deeds that seem evenslightly unfair. Utu is present in the region’s folklore and other traditional
stories and proverbs:
Asiyejua utu si mtu (One who isn’t humane isn’t a person)
Mwacha mila ni mtumwa (One who renounces his culture is a slave)
Usiharibu utu kwa kitu, afadhali haribu kitu kwa utu (Don’t spoil yourhumanity with a thing; it is better to spoil a thing with your humanity. Usethings to make you a better human being.)35

The writings of scholars such as Ali Mazrui,36 Ustadh Ahmad Nassir,37
John Mbiti,38 Abdilatif Abdalla39 and Shaaban bin Robert40 (also known_____________________

32 Himonga et al. (n. 30).
33 R English ‘Ubuntu: The quest for an indigenous jurisprudence’ 1996 SAJHR 641–
648.
34 S v Makwanyane 1995 (3) SA 391 (CC) para. 364.
35 <http://swahiliproverbs.afrst.illinois.edu/abuse.html> (accessed 5 October 2023).
36 Ali Mazrui Summary of The Africans: A Triple Heritage (Little Brown and Company, 1986).
37 Ustadh Ahmad Nassir Utenzi wa Mtu ni Utu (Macmillan, 1979).
38 John Mbiti African Religions and Philosophy (Heinemann, 1969).
39 A Abdalla Sauti ya Dhiki (Nairobi and Dar es Salaam: Oxford University Press,
1973).
40 Shaaban Robert Adili na Nduguze (Macmillan, 1956).

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The imperative of ubuntu in contemporary judicial decision-making
as Shabaan Robert) are particularly instructive on East Africa’s experience on utu philosophy. Mazrui saw Africa as a continent that depicts ‘aclash of cultures’. He speaks of Black Jews worshipping in Ethiopia andYoruba divination in Nigeria. He mentions the layers of culture in Egypt
as a good example of African diversity. In Kenya Mazrui sees a triple
heritage of law: a synthesis of Western, Muslim, and African traditions.
However, the English system of law has become the most influential.41
He laments that the African Union is divided by language. For a common
language, AU members must use a foreign language such as English or
French to discuss African affairs. Nevertheless, he asserts that, ‘in any
fruitful union of the Triple Heritage, the indigenous culture must be thefoundation’. He also advocates for ‘self-colonization’ by Africa:
I am advocating self-colonization by Africa. I am against the return of European
colonialism and the equivalent of Pax Britannica. But I fear that if Africans do
not take control of their destiny themselves, including the use of benevolent
force for self-pacification, they will once again be victims of malevolent colonial
force by others.42

Shaaban Robert employs folkloric materials in order to present different
issues relating to utu (humanness). He uses Swahili folklore and language
to discuss social and philosophical aspects through the lens of African
philosophy.43 In his novel Adili na Nduguze,44 Robert reflects the concept of humanness as it is viewed among Africans.
The novel follows the story of three brothers Hasidi, Mwivu and Adili
after the death of their parents. The brothers inherit immense wealth.
Hasidi and Mulvu lose their fortune after a shipwreck. Adili decides toshare his wealth with his two brothers. Thereafter, a conflict arises
amongst the brothers over Adili’s friend Mwelekevu. Adili is thrown into
the sea by his two brothers but is eventually rescued by a ‘genie’, whopunishes the two brothers by turning them into apes. Adili is ordered towhip the apes every night. The conflict is later resolved through the intervention of kings.
The tale of Mji wa Mawe in Adili na Nduguze reveals an ontological conflict which can be easily understood through the meaning of utu. The
attempt of the two brothers Hasidi and Mwivu to drown their brother isseverely punished when they are condemned to be beasts.
_____________________

41 Mazrui (n. 36).
42 AA Mazrui ‘Self-colonization and the search for Pax Africana: A rejoinder’ (1995)
2 CODESRIA Bulletin 20–22.
43 Ibid. 38.
44 Robert (n. 40).

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Ubuntu in the Age of Human Rights
Nevertheless, turning human beings into beasts and subjecting them toregular whipping is also contrary to the restorative ubuntu approach tojustice. Thus, the two brothers are turned back into human beings when
the curse placed upon them is removed.45
Ubuntu allows a delinquent who confesses and repents to be acceptedback into the community because he or she is deemed to have regained
his or her humanness; he or she becomes a person once more.

1.6.3 Utu/ubuntu: A Kenyan experience
Utu was the main philosophy governing Bantu speakers of East Africa in
pre-colonial times. It’s import was that everything was done was for the
benefit of the whole community. In Luhya (umundu), Kikuyu (undu),
Meru (untu) and Kisii, spoken mainly in the western, central, easternand Nyanza regions of Kenya, utu stands for humanness or the act of
being humane to other human beings and to nature in general.
When Kenya attained independence in 1963 and the British colonisers
left (some argue that they never actually left), the new republic was left
with many legal systems: an African traditional justice system, English
common law, Indian laws and Sharia laws. Notably, African customary
law was to be applied in so far as it was not ‘repugnant to justice andmorality’.46 The repugnancy clause has been retained in Kenya’s laws todate. Article 2(4) of the Constitution of Kenya, 2010 provides thus: ‘Anylaw, including customary law, that is inconsistent with this Constitution isvoid to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid’.
The repugnancy clause has been a subject of interesting scholarly andjudicial discourse.47 Some have argued that ‘justice and morality’ wereand are still being interpreted from the perspective of English common
law and the English people,48 that English culture is the standard against
which Kenyan cultures, values and traditions are judged.
_____________________

45 JP Madoshi ‘Folk narratives and the reflection of (utu) humanness in Shaaban
Robert Adili na Nduzuze’ (2015) 6(1) Venets: The Belogradchik Journal for Local
History, Cultural Heritage and Folk Studies <https://doaj.org/article/
7bb7b3a6aa5745ec9671966de48b12ee> (accessed 9 October 2023).
46 S 3(2) of the Judicature Act Cap 8; arts 2(4) and 159(3)(b) of the Constitution of
Kenya, 2010.
47 PZG & 2 others v TMT (2019) eKLR <http://kenyalaw.org/caselaw/cases/view/
180956> (accessed 10 October 2023).
48 See generally Konrad Adenauer Stiftung History of Constitution Making in Kenya(2012); N Kamunde-Aquino ‘Kenya’s constitutional history’ (2014) <http://www.cbgoumaadvocates.co.ke/wp-content/uploads/2017/11/Nelly-Kamunde-AquinoKenyas-Constitutional-History-1.pdf>; HWO Okoth-Ogendo ‘The politics of con[continued on next page]

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The imperative of ubuntu in contemporary judicial decision-making
Kenya’s 1963 Independence Constitution49 was subjected to several
amendments and finally repealed in 1969.50 The reintroduced Constitution faced the same fate as that of the Independence Constitution –undergoing profound changes and eventually ending up being what
Okoth-Ogendo called a ‘Constitution without constitutionalism’.51 The
1969 Constitution, having lost its value content and significance as aresult of numerous amendments, made Kenyans demand and agitate fora new constitution, ultimately giving themselves and their progeny theConstitution of Kenya, 2010. It is against this background that the traditional justice systems and the application of the concept of utu/ubuntu
is examined in this section.
Despite the onslaught of the English legal system, traditional dispute
resolution mechanisms have remained resilient, and communities continue to apply the values and principles of traditional justice systems insettling disputes in Kenya today. This is because these systems are basedon the normative concepts of utu. As already described, the underlying
theme in these systems is restorative justice, the main aim of which isrestoration of relationships and peace-building as opposed to the allocation of rights among disputants.52 It calls on the courts to accept andapply these principles in rendering their decisions. The Honourable Justice SN Mutuku stated thus:
Judicial officers are human beings and this ‘humanness’ ought to reflect in ourdaily duties. We deal with all manner of personalities and sometimes our callof duty goes beyond the official duty. In the normal course of my official duties,
I have come to realize that trying to understand parties before me and theactions they take helps a lot. I call it discharging judicial duties with a human
53
face.

_____________________

stitutional change in Kenya since independence, 1963–69’ (1972) <https://www.jstor.org/stable/720361> (accessed 5 October 2023).
49 Act 1968 of 1963.
50 The 1963 Constitution of Kenya, after being amended severally times, was eventually repealed and reintroduced and passed as Act No. 5 of 1969 <http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution/HistoryoftheConstitutionofKenya/
Acts/1969/ActNo.5of1969.pdf> (accessed 3 October 2023).
51 HWO Okoth-Ogendo ‘Constitutions without constitutionalism: An African political paradox’ in D Greenberg, SN Katz, B Oliviero and SC Wheatley (eds) Constitutionalism and Democracy: Transitions in the Contemporary World (New Yorkand Oxford: Oxford University Press, 1993).
52 ICJ (n. 22).
53 Criminal Revision 3 of 2013, Muema Syengo Kiti v Republic [2013] eKLR
<http://kenyalaw.org/caselaw/cases/view/90947>.

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Ubuntu in the Age of Human Rights
In its preamble, the 2010 Kenyan Constitution reflects the lived historyof Kenyans and their determination to live and coexist harmoniously inthe spirit of utu. It reads:
We, the people of Kenya –… Proud of our ethnic, cultural and religious diversity, and determined tolive in peace and unity as one indivisible sovereign nation:
Respectful of the environment, which is our heritage, and determined to sustain it for the benefit of future generations:
Committed to nurturing and protecting the well-being of the individual, thefamily, communities and the nation:
Recognising the aspirations of all Kenyans for a government based on theessential values of human rights, equality, freedom, democracy, social justiceand the rule of law:
… Adopt, enact and give this Constitution to ourselves and to our future generations [emphases added].

Even though the Constitution does not make express mention of the term
utu, utu’s fundamental concepts are present throughout the text. For
example, article 10 lists the national values and principles of governanceas including human dignity, national unity, rule of law, sharing anddevolution of power, equity, social justice, inclusiveness, equality, humanrights, protection of the marginalised, and participation of the people.
These are all the fundamental elements of utu/ubuntu. Article 11 recognises culture as the foundation of the people and as the cumulative civilisation of the Kenyan people and nation. The provision obligates the state
to promote all forms of national and cultural expression and to recognise
the role of indigenous technologies in the development of the nation.
Article 44 of the 2010 Constitution vests in every person the right to use
the language and participate in the cultural life of their choice. Article 45
recognises the family as the fundamental unit of society and as the necessary basis for social order. The family thus enjoys the recognition andprotection of the state. The Constitution has entrenched and given constitutional underpinning to reconciliation and restorative justice as someof the methods of justice and alternative dispute resolution.
The Kenyan Victim Protection Act defines restorative justice as thepromotion of reconciliation, restitution and responsibility through the
involvement of the offender, the victim, their parents (if the victim andoffender are children) and their communities and as a systematic legal
response to victims or immediate community that emphasises healing
the injuries resulting from the offence.54_____________________

54 S 2 of the Victim Protection Act No. 17 of 2014.

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The imperative of ubuntu in contemporary judicial decision-making
The Judiciary Alternative Justice Systems (AJS) Baseline Policy55 recognises the importance of traditional justice systems in the resolution ofboth civil and criminal disputes. It adopts the agency theory of jurisdiction as the constitutionally permissible modality to determine the acceptability and propriety of a particular dispute, controversy or issue to be put
before an AJS mechanism. This theory also challenges judicial officers to
go beyond the narrow view that considers criminal cases as disputes
between the state and an individual and not as between two individuals.
Human rights are guaranteed to all individuals. According to the Baseline Policy, universality theory requires that the rights notion of humanness (or utu in Swahili) is found everywhere and its contents are thesame.56 The Policy thus concludes that the idea that human rights are a
Western concept must be rejected.
Article 159 of the 2010 Constitution, on judicial authority, provides:(2) In exercising judicial authority, the courts and tribunals shall be guided
by the following principles …
(c) alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms
shall be promoted. subject to clause (3);(3) Traditional dispute resolution mechanisms shall not be used in a way
that–(a) contravenes the Bill of Rights;(b) is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality; or(c) is inconsistent with this Constitution or any written law.

The courts have had an opportunity to interpret and apply the provisionsof article 159(2) of the Constitution on several occasions. In the case of
Republic v Mohamed Abdow Mohamed57 the accused was charged withmurder and pleaded not guilty. On the hearing date, the court was informed that the family of the deceased had written to the Director of
Public Prosecutions (DPP), requesting that the murder charge be withdrawn on account of a settlement reached between the families of theaccused and the deceased respectively. Subsequently, counsel for thestate, on behalf of the DPP, made an oral application to have the mattermarked as settled, contending that the parties had submitted themselves_____________________

55 Judiciary of Kenya ‘Alternative Justice Systems Baseline Policy: Traditional,
informal and other mechanisms used to access justice in Kenya (alternative justice systems)’ (Nairobi, August 2020).
56 Ibid. 30.
57 Criminal Case 86 of 2011, Republic v Mohamed Abdow Mohamed [2013] eKLR
<http://kenyalaw.org/caselaw/cases/view/88947> (accessed 10 October 2023).

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Ubuntu in the Age of Human Rights
to traditional and Islamic laws, citing article 159 of the Constitution,
which allowed courts and tribunals to be guided by alternative dispute
resolution including reconciliation, mediation, arbitration and traditional
dispute resolution mechanisms.
For context and clarity, the following excerpt from the letter sent by thedeceased’s family is reproduced:
The two families have sat and some form of compensation has taken place
wherein camels, goats and other traditional ornaments were paid to theaggrieved family. Actually, one of the rituals that have been performed is said
to have paid for blood of the deceased to his family as provided for under theIslamic Law and customs. These two families have performed the said rituals,
the family of the deceased is satisfied that the offence committed has been
fully compensated to them under the Islamic Laws and Customs applicable insuch matters and in the foregoing circumstances, they do not wish to pursue
the matter any further be it in court or any other forum … it’s worth notingthat it goes against our tradition to pursue the matter any further and/or
testify against the accused person once we have received full compensationin the matter of which we already have … It’s our instruction that the matter
and/or court case be withdrawn as our family wishes to put a stop to the matter58 [emphases added].

The court was faced with two questions: (1) can a murder charge be withdrawn on account of a settlement reached between the families of an
accused and the deceased? and (2) can alternative dispute resolution
mechanisms as espoused by the Constitution of Kenya, 2010 be extended
to criminal matters? The court held that under article 157 of the Constitution, the DPP is mandated to exercise state powers of prosecution andmay discontinue criminal proceedings against any person at any stage.
The court deemed it fit and just that the case be withdrawn as the ends ofjustice would be met by allowing rather than disallowing the application.
The High Court, facing a similar case in Republic v Musili Ivia &another,59 arrived at the same finding, holding that:In the circumstances of this case, I do not find the settlement agreement to beinconsistent with the spirit and purpose of Article 159(2)(c) and (3) of theConstitution of Kenya 2010 … I am also not aware of any written law or International Convention that prohibits the amicable settlement proposed. The victim is already dead, and close relatives agree to the settlement. I have not been
told that there is any objection from the community or the public. I will therefore accord the clan settlement consideration in this matter … the Director of_____________________

58 Ibid.
59 Criminal Case 2 of 2016, Republic v Musili Ivia & another [2017] eKLR
<http://kenyalaw.org/caselaw/cases/view/143113> (accessed 10 October 2023).

18

The imperative of ubuntu in contemporary judicial decision-making
Public Prosecutions has power to discontinue criminal proceedings subject tothe permission of the court. He has now asked for such discontinuance of thecriminal proceedings, on the above reconciliation agreement. He has statedthat as a result of the settlement reached, he cannot be able to avail prosecution witnesses. In my view, this court is entitled to promote the reconciliation
as requested and I thus allow the request of the Director of Public Prosecutions and order that the criminal proceedings herein against the two accusedherein for murder be and are hereby discontinued [emphases added].

A close examination of the two cases reveals that they were withdrawn
only because the DPP was the party applying for withdrawal.60 Whatwould have happened if the DPP had opposed the applications for withdrawal? Would the courts have arrived at the same decision? It would
not be long before the courts had an opportunity to answer these questions.
In Republic v Abdulahi Noor Mohamed (alias Arab)61 the court was facedwith facts similar to those of the two cases above, except that, in thiscase, it was the accused who applied for withdrawal of the case, whichapplication the DPP opposed. The families of the accused and the deceased had reached a settlement after some compensation was made,rituals were conducted and an agreement of reconciliation was signed.
The court disagreed with the manner in which Mohamed Abdow
Mohamed had been determined, pointing out that the accused and the
DPP ought to have reduced the settlement to a plea agreement and presented it to the court. However, the court further stated that even though
the Constitution recognised alternative justice systems as one of the principles guiding courts in the exercise of their judicial authority and did not
exclude criminal cases, there were ‘no policy guidelines on how to incorporate the alternative justice systems in handling criminal matters’.62
The court also found that the statutory provisions63 limited the application of alternative dispute resolution mechanisms to civil disputes andmisdemeanours in criminal matters.
Mournful of the lack of a formalised structure whereby informal justicesystems can be applied to criminal matters and their scope of operation
specified, the court proceeded to rely on the case of Juma Faraji Serenge_____________________

60 See also Criminal Case 32 of 2012, Republic v Ishad Abdi Abdullahi [2016] eKLR
<http://kenyalaw.org/caselaw/cases/view/128857> (accessed 10 October 2023).
61 Criminal Case 90 of 2013, Republic v Abdulahi Noor Mohamed (alias Arab)[2016] eKLR <http://kenyalaw.org/caselaw/cases/view/125467> (accessed
10 October 2023).
62 Ibid. para. 22.
63 S 3(2) of the Judicature Act; s 176 of the Criminal Procedure Code.

19

Ubuntu in the Age of Human Rights
alias Juma Hamisi v Republic,64 which was decided in the previous constitutional dispensation. In the end, the court disallowed the application,
holding that:
A crime is an injury not only against the affected individual(s) but also against
the society. Offences are prosecuted by the state, which in so doing protects
the social rights of all citizens. Therefore, at a minimum, the prosecution
should be consulted before having the reconciliation agreements and customary laws applied in resolving criminal cases. In this case, the prosecution turned
down any an offer by the accused to negotiate a plea agreement proposal. By
asking this court to enforce an arrangement between the accused and thefamily of the accused, to the exclusion of the prosecution amounts to a disregard of the law on the exercise of prosecutorial powers. That cannot be theobject envisioned under Article 159 when recognizing alternative justice systems as one of the principles to be promoted by courts when exercising judicial authority. Application of alternative dispute resolution mechanisms must
be consistent with the Constitution and the written law of the land.65

The court in this case did not appreciate the goodwill of the accused person’s family and that of the deceased’s family in their quest to have thematter settled out of court. Rightly or wrongfully, the court interpreted
the Constitution and the law in a manner that did not promote the use of
traditional dispute resolution mechanisms that focus on restorative justice. The court instead chose to give the DPP the only key to the doors of
traditional dispute resolution mechanisms in criminal matters. Unfortunately, later decisions followed this trend, and it has almost become
settled law that without a plea agreement and the consent of the DPP
criminal cases cannot be withdrawn on article 159(2) grounds.66
The courts in Kenya have noted that the criminal offences codified in the
Penal Code, the Sexual Offences Act and other written laws often comeinto conflict with traditional African and specifically Kenyan cultures.
For instance, the High Court in JMN v Republic67 grappled with section
22(2)(a) of the Sexual Offences Act, which provides for the degrees ofconsanguinity in relation to the offence of incest. The court, quashing theconviction of the appellant, held that ‘the wording of Section 22(2)(a)_____________________

64 Misc Crim Appli 42 of 2006 Juma Faraji Serenge alias Juma Hamist v Republic[2007] eKLR <http://kenyalaw.org/caselaw/cases/view/36920> (accessed
11 October 2023).
65 Republic v Abdulahi Noor Mohamed (alias Arab) (n. 61) para. 27.
66 See generally Petition 285 of 2016, Mary Kinya Rukwaru v Office of the Directorof Public Prosecutions & another [2016] eKLR <http://kenyalaw.org/caselaw/cases/view/128484> (accessed 11 October 2023).
67 Criminal Appeal 11 of 2020, JMN v Republic [2023] eKLR <http://kenyalaw.org/
caselaw/cases/view/210472> (accessed 11 October 2023).

20

The imperative of ubuntu in contemporary judicial decision-makingof the Sexual Offences Act is of an ambiguous nature and often comesin[to] conflict with traditional African and Kenyan cultures definition ofrelatives’.
The same thoughts were voiced in Ismael Hassan Medza v Republic:68
My interpretation of the offence of incest under Section 20(1) of the Act wasmeant to prohibit sexual intercourse between persons so closely related thatmarriage between them is forbidden by Law. However, the common definitionin Section 22 of the Act embodies the views of parliament which one may term
as amorphous in both dictionary and legal definitions. Why do I say so? The
scope of consanguinity varies from one race, tribe, ethnic society, communityand country, for reason that various societies have stringent cultures customs
and taboos which govern incestuous acts and prohibitions.

Kenyan law reports are riddled with instances where the courts haveapplied the normative values of utu/ubuntu in rendering their decisions
especially in instances where there were gross violations of human rights
and no clear policy guidelines on the granting of reliefs/remedies.69 Kenya
still has a long way to go before fully adopting utu/ubuntu concepts in its
legal system.
The adoption of the judiciary’s Alternative Justice Systems (AJS) Policy
is seen as an effort to break down conceptual structures of legal practiceand thought adopted from our colonial and post-colonial contexts. During the launch of the Judiciary Alternative Justice Systems, the Honourable Chief Justice emeritus David K Maraga said:
Kenyan communities have, for generations, had their own justice systems thathave held, and continue to hold, societies together. … Alternative Justice Systems as espoused in this Policy are community-centered and reflect the lived
realities of the people and, therefore, eminently more accessible to people.70

1.6.4 Rwanda and Burundi legal systems
In Kinyarwanda and Kirundi, the national languages of Rwanda andBurundi respectively, ubuntu means human generosity as well as_____________________

68 Criminal Case 111 of 2017, Ismael Hassan Medza v Republic [2023] eKLR
<http://kenyalaw.org/caselaw/cases/view/207185> (accessed 11 October 2023).
69 Petition 3 of 2018, Mitu-Bell Welfare Society v Kenya Airports Authority & 2
others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC
34 (KLR) <http://kenyalaw.org/caselaw/cases/view/205900> (accessed 11 October 2023).
70 Moses Muoki ‘Maraga launches Alternative Justice System to reduce case backlog’ Capital News (28 August 2020) <https://www.capitalfm.co.ke/news/2020/08/maraga-launches-alternative-justice-system-to-reduce-case-backlog>(accessed 11 October 2023).

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Ubuntu in the Age of Human Rights
humanity.71 When in these languages people say gira ubuntu they areasking for members of a society to be generous, to have consideration andbe humane towards others.
Vision Burundi 2025 states that it regards ‘the protection and the promotion of cultural identity as an effective means to rebuild social cohesion’.
It also pronounces that:
Within this framework, in addition to the fundamental values of Burundiansociety that are in particular Ubuntu (the ethical concept of African origin),tolerance, respect for the other, sharing, etc. Kirundi, the language of communication between all Burundians, forms the principal cultural identity of thecountry and is a unifying factor.72

Burundi places particular emphasis on training the population and theyouth in positive traditional cultural values such as solidarity, mutualsocial assistance, forgiveness and mutual tolerance, patriotism; a senseof discretion (ibanga) and responsibility, dignity (ubupfasoni) and respect for others and oneself; and humanism and personality (ubuntu).73

Rwanda and the Gacaca courts
Rwanda has perhaps been in the forefront of promoting the normative
concepts of ubuntu. There are practical examples to demonstrate this: inan exemplary act of ubuntu, Rwanda signed a deal with the UN refugee
agency (UNHCR) and the African Union (AU) to host hundreds of African migrants who were being held in dire and inhumane conditions in
Libya.74
The revival of Gacaca courts following the Rwandan genocide of 1994 is
one of the best examples of an African country using its traditional justice system to resolve its internal conflicts when Western systems fail.
_____________________

71 Wichtner-Zola Y ‘“Ubuntu” is powerful thinking’ (2012) <https://www.canr.msu.edu/news/ubuntu_is_powerful_thinking>.
72 United Nations Development Programme ‘Vision Burundi 2025’ <https://www.undp.org/sites/g/files/zskgke326/files/migration/bi/UNDP-bi-vision-burundi2025_complete_EN.pdf> (accessed 10 November 2023).
73 Republic of Burundi, Ministry of Human Rights. Social Affairs and Gender ‘African Charter on the Rights and Welfare of the Child Initial Implementation Report’(August 2017) <https://www.acerwc.africa/sites/default/files/2022-06/ENRapport-du-Burundi-sur-la-mise-en-oeuvre-de-la-Charte-Africaine-des-___.pdf> (accessed 11 October 2023).
74 This Is Africa ‘Rwanda sets exemplary act of ubuntu signing a deal to host 500
African migrants trapped in Libya’ (10 September 2019) <https://thisisafrica.me/politics-and-society/rwanda-Ubuntu-deal-to-host-migrants-in-libya>(accessed 11 October 2023).

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The imperative of ubuntu in contemporary judicial decision-making
Gacaca courts were introduced by the Rwandan government as an alternative to national justice after the Rwandan genocide. The Gacaca courts
were a state-administered structure which used communities as a basis
for judicial fora.75 They were instituted in response to the failure of theWestern-styled national courts to process all the suspects of the genocide.
Gacaca trials were based on indigenous local justice, with ubuntu ethics
being an underlying element of the system.76 The conduct of the trials
was traditionally informal, organic, and patriarchal.
The revived Gacaca courts were a modernised indigenous justice systemthat established an organisational structure and included reforms suchas the inclusion of women.77
The Gacaca courts of Rwanda symbolise how ubuntu is still practised in
Africa in being a forum where people could openly confess their crimes
and apologise to the families of the offended. They were an indigenous
form of restorative and transitional justice.
Unfazed by criticisms from the international community,78 the Gacaca
courts persisted and are reported to have been able to solve hundreds ofcases in all the districts of Rwanda without necessarily punishing theconvicted persons but by trying to reintegrate them into the community.
Some scholars maintain the view that mainstream courts could havetaken more than a decade to solve the cases solved by the Gacaca courts.79
Rwanda’s Gacaca courts remain one of the largest community-based
judicial undertakings of the century.
Rwanda, Burundi, Kenya, South Africa, Tanzania and many other Africancountries share similarities in the social, economic and political framework of their societies. Their people share similar traditional values anddispute resolutions mechanisms. Countries with the same former colonial‘masters’ share even more similar legal systems.
_____________________

75 A Meyerstein ‘Between law and culture: Rwanda’s Gacaca and postcolonial
legality’ (2007) 32(2) Law & Social Inquiry 467–508.
76 E Žebrauskaitŏ ‘The ethics of ubuntu as a basis for African institutions: The caseof Gacaca courts in Rwanda’ <https://www.unav.edu/en/web/global-affairs/
detalle/-/blogs/the-ethics-of-ubuntu-as-a-basis-for-african-institutions-thecase-of-gacaca-courts-in-rwanda> (accessed 11 October 2023).
77 MA Drumbl ‘Post-genocide justice in Rwanda’ (2020) 22(1–4) Journal of International Peacekeeping 247–262.
78 The Gacaca trials received criticism for not complying with international standards for the distribution of justice. For example, Amnesty International invoked
art. 14 of the ICCPR and stated that Gacaca trials violated the accused’s right tobe presumed innocent and to a fair trial. See also Meyerstein (n. 75).
79 S Hinton ‘The connection between Ubuntu indigenous philosophy and the Gacaca
traditional judicial process in Rwanda’ (2016) 5(1) US–China Education Review
392–397.

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Ubuntu in the Age of Human Rights
This is not to paint the lives of the people of Africa with broad strokes.
The African continent is extremely heterogeneous and the lived experiences of its people are diverse and distinct.
The differences come alive in the multiplicity of cultures and traditions
found all across the continent. These differences notwithstanding, thespirit of utu/ubuntu is almost invariably discernible in the myriad cultures and civilisations in Africa.

1.7 Ubuntu and the use of natural resources
The concept of ubuntu, as already indicated, has permeated the lives andsocieties of Africans. The foregoing eclectic survey has served to give only
a broad synoptic history of ubuntu and has therefore dealt with dispute
resolution in a broad sense; but ubuntu also manifests in the use ofresources such as water, which, as the cliché goes, is life. As noted by
Okoth-Ogendo, the lasting impact of such indigenous philosophy throughout Africa’s existence is ‘still the only significant framework for theorganisation of social and economic livelihoods in Africa’.80
Mabele et al. write that the discourse on resource use and conservation
has, thus far, been led by and centred on models and policies fashioned
by Western ideologies.81 This Western approach, they elaborate, is premised on the idea of the separation of the environment from people’s useof it. They propose that a decolonised approach centred on ubuntu would
provide a system of conservation that emphasises not only the interconnectedness of all humans in their enjoyment and use of natural resources
but also the mutually beneficial symbiotic relationship between humans
and nature that ought to be at the heart of conservation efforts.
Ojakorotu and Olajide82 emphasise that an ubuntu-centric approach toresource use would divest Africa of the constraints of neo-colonialism
and promote the aims of Pan-Africanism. They speak of the resource
curse that plagues Africa, a continent that accounts for 30% of the world’s
resources yet is constantly the victim of economic upheaval and sociopolitical strife.
_____________________

80 Okoth-Ogendo (n. 15).
81 Mathew Bukhi Mabele, Judith E Krauss and Wilhelm Kiwango ‘Going back to theroots: Ubuntu and just conservation in southern Africa’ (2022) 20(2) Conservation & Society 92.
82 V Ojakorotu and BE Olajide ‘Ubuntu and nature: Towards reversing resource
curse in Africa’ Ubuntu: Journal of Conflict and Social Transformation<https://journals.co.za/doi/10.31920/2050-4950/2019/sin2a2>(accessed
18 October 2023).

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The imperative of ubuntu in contemporary judicial decision-making
Ubuntu, they reiterate, would promote governance and use of natural resources that will emphasise not only interpersonal relationships amongst
Africans, but also the relationship between humanity and nature, with aview to preserving nature for the benefit of future generations.
In the face of climate change, water, owing to its finite nature, has
attracted a great deal of attention. Many resolutions and treaties such as
United Nations General Assembly83 (UNGA) resolutions, United Nations
Sustainable Development Goals (SDGs) Goal 6, and the African Union’s
Agenda 2063, among others, have been entered into to ensure water as aresource is evenly distributed within Africa.
Water as a resource is crucial for life, and access to clean and safe water
is a fundamental human right. It is essential for drinking, sanitation,
food production, and overall human well-being. The recognition of water
as a human right underscores the importance of ensuring that all individuals have access to sufficient, safe, acceptable, physically accessible,
and affordable water for personal and domestic use.84 Africa is home tonearly 19 lake/river basins including Congo, Niger, Nile, the Senegal,
Juba Shebelle, Lake Chad, Lake Turkana, Limpopo, Ogoague, Okavango,
Orange, Volta, and Zambezi, all of which account for nearly 64% of
Africa’s renewable freshwater resources.85
In the spirit of ubuntu, the transboundary usage of water would ensurethat the resource is used in a manner that is beneficial to all. Thesebasins, if properly exploited, can offer the continent great riches andliberate it from the clutches of sorrow and want. They offer the opportunity for the generation of hydroelectric power, fisheries, and transboundary transport among many other benefits.
Water, just like land, in pre-colonial Africa was considered terra nullius
and its access open to all. Such resources would be held in trust for the_____________________

83 UNGA Res 68/157 ‘The human right to water and sanitation’ (18 December 2013)
A/RES/68/157 (adopted without a vote); LINGA Res 70/169 ‘The human right towater and sanitation’ (17 December 2015) A/RES/70/169 (adopted by consensus); HRC Resolution ‘The human right to safe drinking water and sanitation’
Resolution A/HRC/RES/15/9 (30 September 2010) [3] (adopted without a vote);
HRC Resolution ‘The human right to safe drinking water and sanitation’ A/HRC/
RES/16/2 (24 March 2011) para. 1 (adopted without a vote).
84 The Convention on the Rights of the Child (CRC), adopted by the United Nations
General Assembly in 1989, emphasises the right of every child to the highest
attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.
85 See PLO Lumumba ‘Role of transboundary water cooperation in accelerating theattainment of the Sustainable Development Goals’, speech given at the Nile Basin
Development Forum held at Kampala, Uganda, on 16 October 2023.

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Ubuntu in the Age of Human Rights
benefit of the community and enjoyed individually in terms of usufructuary rights. Our rivers, lakes, and aquifers know no boundaries, and thewaters that sustain us transcend political and geographical demarcations.
In this context, it becomes evident that the challenges we face in ensuring access to clean water, sanitation, and sustainable management of this
precious resource are best addressed through ubuntu and transboundarywater cooperation.
Fully cognizant of disparities in Africa, and aware that some regions,countries or people are ‘blessed’ (resourcewise) in one way or another,ubuntu philosophy is critical to ensuring even distribution of resources
to marginalised groups. Africa needs a concerted effort to counter underdevelopment and soaring poverty rates. An even distribution will requirethat resources such as water be made available to every African, ultimately reducing resource-disparities and promoting equity.
Water is the thread that weaves through the fabric of our world, touching
every facet of our lives, from agriculture to industry, from health toenergy, from human survival to the health of our ecosystems. It is therefore essential that we harness this resource for the benefit and development of our world. Ubuntu emphasises the interconnectedness of all
individuals and the value of community, compassion, and empathy. It isa useful framework for directing the allocation of resources, especially incircumstances where communal well-being and social harmony are important factors. Ubuntu encourages the idea that members of a community share a collective responsibility for one another’s well-being. When
allocating resources, this philosophy promotes a focus on ensuring thateveryone’s basic needs are met before addressing individual wants ordesires.
Through colonialism in the late 19th century, European powers imposed
new political boundaries across Africa, further complicating resource allocation and management. The arbitrary division of the continent’s river
systems among different colonial territories disregarded centuries-old
water usage patterns and traditional resource management practices.
In the late 20th century, awareness of the need for a comprehensive
approach to transboundary water management began to gain traction.
Regional organisations such as the African Union and the African Development Bank emerged as platforms for fostering cooperation and dialogue
among African nations. These institutions facilitated the development offrameworks and policies aimed at promoting equitable and sustainable
management of transboundary resources, mainly water.
The opportunities available to Africa through harnessing its water resources are innumerable and span different sectors such as the energy
sector, the transport sector, fisheries, industry, and urban development
among others. In Kinshasa, the Great Inga Dam has the potential to power
26

The imperative of ubuntu in contemporary judicial decision-making
the whole of Africa if it is well developed and collaboratively managed. In
Niger, the Kainji Dam also holds great potential as regards the amount ofhydroelectric power it can generate and supply.
These opportunities are made visible through the different initiatives
Africa has taken such as the Africa Water Vision 2025,86 Africa Agenda
206387 and the global Sustainable Development Goals (SDGs).88 The
Africa Water Vision 2025, developed by the African Union (AU) and its
member states, provides a comprehensive road map for water resourcesmanagement in Africa. It recognises the importance of transboundarywater cooperation and emphasises the need for integrated approaches towater management. The Vision aims to ensure equitable access to water
resources, enhance water governance, and promote sustainable development.
By fostering ubuntu among African nations, the Africa Water Vision 2025
seeks to address challenges relating to water scarcity, pollution, andclimate change, ultimately contributing to poverty reduction and socioeconomic development across the continent.89 As it comes to an end, theAfrica Vision 2025 should be interrogated to establish whether it has
been instrumental in developing water resources throughout its period of
application, and to decide whether Africa should develop somethingsimilar for the years to come.
Africa Agenda 2063, another key strategic framework of the AU, envisions
a prosperous, united, and integrated Africa. Water resources management
is identified as a critical component in achieving this vision. The agendaemphasises the sustainable use and management of water resources as acatalyst for socio-economic transformation under aspiration 1. It recognises the importance of transboundary water cooperation in fostering
regional integration, peace, and stability.
By promoting cross-border collaboration, Africa Agenda 2063 seeks to
unlock the potential of transboundary water resources for agriculture,energy, industrial development, and environmental sustainability, aligning with the AU’s aspirations for a prosperous and united Africa.

_____________________

86 The Africa Water Vision for 2025: Equitable and Sustainable Use of Water for
Socioeconomic Development (2000).
87 Agenda 2063: The Africa We Want (2013).
88 The 17 goals were adopted by all UN member states in 2015 as part of the 2030
Agenda for Sustainable Development, which sets out a 15-year plan to achieve
those goals.
89 Ojakorotu and Olajide (n. 82).

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Ubuntu in the Age of Human Rights
Furthermore, SDG 6 of the United Nations’ 2030 Agenda for Sustainable
Development focuses specifically on water and sanitation.90 This global
goal is aimed at ensuring the availability and sustainable management ofwater and sanitation for all. In the African context, SDG 6 provides aframework for addressing water-related challenges including transboundary water management issues.
SDG 6 calls for rekindling ubuntu and cooperation among countries
sharing water resources, highlighting the importance of integrated water
resources management and the protection of water ecosystems. By working towards SDG 6, African countries can enhance their capacity fortransboundary water governance, strengthen water infrastructure, andimprove access to safe water and sanitation services, contributing to overall development and well-being.
Collectively, these frameworks have a significant impact on water resources management in Africa. They provide a shared vision, a lighthouse
guiding countries towards sustainable development and cooperation.
They promote the adoption of integrated water management approaches,
the conservation of water ecosystems, and the equitable allocation ofwater resources among riparian countries. They also underscore the importance of addressing the impact of climate change, improving water
infrastructure, and ensuring access to clean water and sanitation services
for all.91
By marrying ubuntu with their policies, strategies, and actions and theAfrica Water Vision 2025, Africa Agenda 2063, and SDG 6, African countries can foster dialogue, enhance knowledge-sharing, and strengthen
institutional frameworks for water governance.

1.8 Conclusion
In conclusion, it is essential to recognise that while the application of
ubuntu in judicial systems and other areas may vary in practice acrossdifferent African cultures and contexts, it cannot be gainsaid that‘ubuntuism’ is in many cases the unseen golden thread that informs andirrigates decision-making. A fortiori, jaundiced arguments that ubuntu
belongs to pre-industrial and unsophisticated societies is destitute oflogic.
_____________________

90 Goal 6: Clean Water and Sanitation <https://www.unep.org/explore-topics/
sustainable-development-goals/why-do-sustainable-development-goals-matter/goal-6#:~:text=Sustainable%20Development%20Goal%206%20goes,of%
20people%20and%20the%20planet> (accessed 8 November 2023).
91 Mabele et al. (n. 81).

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The imperative of ubuntu in contemporary judicial decision-making
The multifaceted nature of ubuntu ensures its adaptability and inherent
flexibility, which makes ubuntu a valuable tool with significant jurisprudential value across various settings and periods with distinctive nuancesthat resonate with diverse judicial ecosystems. Embracing ubuntu withindiverse legal systems ipso facto has the potential to foster more inclusive,
just and sustainable approaches to addressing complex challenges indiverse spheres of human endeavour.

29

2

Ubuntu and climate justice
Caiphas Brewsters Soyapi

2.1 Introduction
Climate justice has gained significant traction in global and national dialogues pertaining to climate change action. Recently, even courts havebeen tasked with adjudicating climate justice issues in a phenomenon
known as climate litigation. Climate justice discussions often revolvearound the inclusion of marginalised communities, indigenous peoples
in developing nations, and, more recently, small island states in climate
action and responses. These discussions also grapple with challenging
issues such as the balancing of interests, assigning liability for pastactions exacerbating climate change, addressing loss and damage, anddefining future state obligations and commitments to prevent climate
catastrophe.
Consequently, there has been a surge in climate change discourse, prompting global efforts to comprehend its implications for state responsibilities. As a result, a potentially groundbreaking climate justice case waslaunched in Germany, and requests for advisory opinions have been submitted to two prominent global judicial bodies: the International Courtof Justice (ICJ) and the International Tribunal for the Law of the Sea(ITLOS). These requests seek to address crucial questions concerningstates’ obligations in the context of climate change.
Running parallel to these climate justice discussions is a surge in interestin the African philosophy of ubuntu and its potential to guide us throughthe numerous crises confronting the world today. This philosophy, originating in sub-Saharan Africa,1 has piqued the curiosity of the humanities, sparking a multitude of questions. What specific aspects of thisphilosophy have garnered such fascination? Does ubuntu possess a solid
conceptual foundation that could serve as the basis for coordinated efforts_____________________

1 To clarify, when we refer to Africa, we are generally speaking about sub-SaharanAfrica. Our reference to common or shared values does not imply that every
country in Africa shares these values but indicates a sense of generality or a prevailing commonality within the region.

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Ubuntu in the Age of Human Rights
or policy reforms aimed at tackling global challenges including climatechange? Could it serve as a value framework for judicial decision-making?
In an attempt to contribute to the global discourse on climate justice, this
discussion aims to make a case for the inclusion of ubuntu in such deliberations. The basic argument offered here is that ubuntu presents a normative premise that could potentially serve as an overarching ‘value’ inresolving global issues related to climate change. Ubuntu’s communitarian ethos offers the world a set of principles that could enable us to shareand distribute our natural resources more equitably while safeguarding
the environment for future generations.
In light of this, the following discussion is structured into five parts. First,
it will briefly establish an understanding of the African narrative within
the context of colonialism and capitalism.2 This foundational framework
is essential for comprehending the struggles of African indigenous communities to adapt and the historical relationship of these communities
with the environment.3 The discussion then proceeds to provide a generalised exploration of the key themes within the discourse of climate justice. We identify fairness and financing as the two overarching and interrelated themes that underpin our understanding of the complex issues
surrounding climate justice. In the fourth section, we introduce the threecases mentioned above: the German case and the two recent requests foradvisory opinions submitted to the ICJ and the ITLOS. Our contention isthat judicial bodies, especially international judicial forums with advisory
capabilities, can play a pivotal role in advancing climate justice discourse
when they assume the role of imparting expository justice instead of only
adjudicating disputes. We provide the context for how considerations inspired by ubuntu ‘ecosophy’4 can inform such expository justice decisionmaking.5_____________________

2 Christelle Terreblanche ‘Ubuntu and the struggle for an African eco-socialist
alternative’ in Vishwas Satgar (ed.) The Climate Crisis: South African and Global
Democratic Eco-Socialist Alternatives (Wits University Press, 2018) 173.
3 Reflecting on the past should not be seen as a means of assigning perpetual blame
or pointing fingers at the Global North. The past serves as a crucial foundation
for comprehending current perspectives on matters of justice and for navigating
the ongoing debates surrounding the contours of climate justice.
4 See the discussion under § 2.5 below.
5 We do not propose that ubuntu provides all the answers to the challenges associated with understanding and addressing climate justice issues. Instead, we
acknowledge the importance of exploring alternative perspectives on how toapproach climate justice strategies, and suggest that ubuntu could serve as one ofmany valuable theoretical frameworks for gaining such insights. See further discussion in Aïda C Terblanché-Greeff ‘Ubuntu and environmental ethics: The West
[continued from previous page]

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Ubuntu and climate justice
Furthermore, we delve into the broader perception of ubuntu within subSaharan Africa, emphasising the implicit normative attributes inherent
in ubuntu as a worldview.6 We illustrate the climate justice considerations inspired by ubuntu that a judicial forum, whether international or
national, would need to grapple with in defining states’ obligations
regarding climate change. Thereafter, we conclude the discussion.

2.2 Colonialism and capitalism as the grand context for(environmental) injustice
Indigenous communities generally have historically placed significant
emphasis on environmental stewardship, a responsibility that endures
because of its fundamental role in sustaining survival in an era of unpredictable climatic change.7 This unpredictability was made more pronounced by colonialism, during which acts of ‘vicious sedimentation’8
were intentionally imposed on colonial territories to reshape livelihoods.
On one hand, this ‘vicious sedimentation’ occurred through actions suchas forcibly displacing indigenous communities and demarcating large
sections of land to establish game parks, national parks, or protectedareas.9 These measures were seen as ways to maintain the pristine stateof wilderness by severing human–nature interaction.
_____________________

can learn from Africa when faced with climate change’ in Munamato Chemhuru(ed.) African Environmental Ethics: A Critical Reader (2019) 95.
6 Voices from Third World nations have often been absent from global debates oninternational law in general and climate change governance in particular. Thisabsence has given rise to scholarly approaches such as Third World Approaches
to International Law (TWAIL), which aim to rectify these imbalances and provide
alternative perspectives. Our hope is that our discussion contributes to this ongoing discourse. For further discussions on TWAIL and climate justice, see Olabisi
D Akinkugbe and Adebayo Majekolagbe ‘International investment law and climate
justice: The search for a just green investment order’ (2023) 46 Fordham International Law Journal 169; Julia Dehm ‘Carbon colonialism or climate justice?
Interrogating the international climate regime from a TWAIL perspective’ 33
Windsor Yearbook of Access to Justice 129; Jan Wilkens and Alvine RC DatchouaTirvaudey ‘Researching climate justice: a decolonial approach to global climate
governance’ 98 International Affairs 125.
7 Kyle Whyte ‘Settler colonialism, ecology, and environmental injustice’ 9 Environment and Society 125 133. We will return to discussing the underpinnings of thisstewardship in § 2.5 below.
8 Vicious sedimentation was coined by Whyte to illustrate ‘how constant ascriptions of settler ecologies onto Indigenous ecologies fortify settler ignorance against
Indigenous peoples over time’ ((n. 7) 140).
9 See, for example, ss 48–50 of the South African National Environmental Management: Protected Areas Act, 2003. The irony is that hunting in these very spaces[continued from previous page]

33

Ubuntu in the Age of Human Rights
On the other hand, an economic ruse emerged, asserting that indigenous
communities possessed all the resources required for prosperity if only
they would relinquish their attachment to nature and embrace opportunities presented by exploiting natural resources. This mindset encapsulated
the capitalist approach and governing notion that capitalism can freely
manipulate nature to its advantage, treating nature as an external entitythat can be segmented, quantified, and rationalised to serve economic
growth, social progress, or other perceived greater goods.10
The audacious manner in which the capitalist mindset and development
paradigm sidelined the beliefs and traditions of traditional communities
exemplifies the lackadaisical approach that modern governance, particularly in African countries, has taken towards nature and the ecosystems
indigenous communities inhabit. Yet, as we shall see below, the significance of traditional ways of life and interactions with nature should notstem from external validation but from the inherent value they hold for
those who engage in them.11
Consequently, past efforts to disrupt traditional livelihoods or interactions
with the environment can be characterised as instances of ecologicalviolence.12 Regrettably, ecological violence continues. In contemporary_____________________

often happens and, even worse, that mining in spaces like protected areas isallowed if authorities approve it. In South Africa, there have been issues aroundthe mining of coal near the Mapungubwe World Heritage Site for a number ofyears. See also Mining and Environmental Justice Community Network of South
Africa v Minister of Environmental Affairs (50779/2017) [2018] ZAGPPHC 807(8 November 2018).
10 Jason W Moore ‘The Capitalocene, Part I: on the nature and origins of our ecological crisis’ 44 The Journal of Peasant Studies 594 601. Carbon majors, big oil,gas and coal producers, have exhibited significant culpability in this context.
Arguably, one of the most extensively documented cases of egregious environmental destruction in Africa is that of Nigeria’s Ogoniland, situated in the Niger
Delta region of southern Nigeria. The terrible fate of Ogoniland must unequivocally serve as a stark reminder of the potential repercussions of carbon-intensive
activities and the considerable losses that indigenous communities may suffer.
See Oluwole Ojewale and Alize le Roux ‘Endless oil spills blacken Ogoniland’s
prospects’ (2022) <https://issafrica.org/iss-today/endless-oil-spills-blackenogonilands-prospects> (accessed 3 October 2023). The Indigenous Environmental Network recently published a report detailing global resistance to carbon
activities. See Indigenous Environmental Network ‘Indigenous resistance against
carbon’(2021)<https://www.ienearth.org/wp-content/uploads/2021/09/
Indigenous-Resistance-Against-Carbon-2021.pdf> (accessed 3 October 2023).
11 Danford T Chibvongodze ‘Ubuntu is not only about the human! An analysis of therole of African philosophy and ethics in environment management’ (2016) 53
Journal of Human Ecology 157 160.
12 Whyte (n. 7) 136.

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Ubuntu and climate justicetimes, ecological violence manifests in subtler ways including the insidious displacement of traditional cultural practices through narratives thatemphasise broader economic advancement, often cloaked in promises of
new employment opportunities and community progress. This approach
undermines a community’s ‘collective continuance’,13 its ability to evolveand adapt to shifts by invoking a shared sense of responsibility among its
members. Instead, such practices are frequently supplanted in favour ofmodernised growth and development-oriented lifestyles.
In essence, the inherently conservation-oriented ethos of indigenous communities is, in part, rooted in their deeply interconnected relationshipwith lands, territories, and resources. As we shall show below, ubuntu
serves as a foundational basis for this relationship, and it is from thisrelationship that the concept of indigenous sustainability emerges. This
profound relationship is precisely why indigenous communities are vulnerable to the adverse impacts of climate change, and why there havebeen recent attempts to reinvigorate ubuntu-driven sustainability thinking and approaches to addressing those impacts. Climate justice, it turns
out, provides a useful framework for this endeavour.

2.3 Climate justice: Key issues
In this overview, we aim to provide a concise summary of some of the key
points that often arise in discussions of global climate justice.14 As a concept, ‘[c]limate justice fundamentally is about paying attention to how
climate change impacts people differently, unevenly, and disproportionately, as well as redressing the resultant injustices in fair and equitableways’.15 On the other hand, Murcott, Tigre, and Nesa16 define climate
injustice as_____________________

13 Ibid.
14 The pursuit of climate justice arises from the effects of climate change, which the
IPCC defines as ‘[a] change in the state of the climate that can be identified (e.g.,
by using statistical tests) by changes in the mean and/or the variability of its
properties and that persists for an extended period, typically decades or longer.
Climate change may be due to natural internal processes or external forcings, orto persistent anthropogenic changes in the composition of the atmosphere or inland use’ (M Tignor and PM Midgley Managing the Risks of Extreme Events andDisasters to Advance Climate Change Adaptation: A Special Report of Working
Groups I and II of the Intergovernmental Panel on Climate Change (Cambridge
University Press, 2012) 5).
15 Farhana Sultana ‘Critical climate justice’ (2022) 188 The Geographical Journal
118 120. Also, according to the Grantham Research Institute on Climate Change
and the Environment, climate justice ‘places an ethical challenge at the heart of
the argument for climate action. It identifies climate change as a symptom of[continued from previous page]

35

Ubuntu in the Age of Human Rights
the uneven and unjust distribution of climate change vulnerabilities and impacts within and among states with reference to the underlying or root causesof such maldistribution, including colonialism, patriarchy, and a lack of recognition and exclusion of people from participation in climate-related decisionmaking due to uneven concentrations of political and economic power.

While the concept can be granulated in various ways, we believe that two
primary issues can be inferred from the above (issues that certainly cometo the forefront in climate discussions): fairness in climate action and thefinancing required for mitigation and adaptation efforts.17 We agree that,in general, the impacts of climate change affect countries differently. Consequently, the responsibilities of states in addressing these impacts areusually tailored to reflect these differences. Therefore, we take a bird’seye-view approach, looking at the generic themes of fairness and financing, which resonate with the general concerns of many developing
countries and small island states.

2.3.1 Fairness
Fairness in climate scholarship cuts across multiple interwoven aspects.
We, however, limit our discussion to issues of historical pollution, participation and intergenerational equity.

2.3.1.1 Historical pollution
Injustice lies at the core of the pursuit of fairness in climate justice deliberations. Indeed, discussions surrounding fairness inevitably lead us tograpple with the issue of historical pollution, an injustice that has leftmany low-income and developing nations struggling to contend with theclimate crisis.
_____________________

unfair and unrepresentative economic, social and political institutions’ (Grantham
Research Institute on Climate Change and the Environment ‘What is meant by“climate justice”?’ (2022) <https://www.lse.ac.uk/granthaminstitute/explainers/
what-is-meant-by-climate-justice> (accessed 14 August 2023)).
16 Melanie Murcott, Maria Antonia Tigre and Nesa Zimmermann ‘Transnational insights for climate litigation at the European Court of Human Rights: A SouthNorth perspective in pursuit of climate justice’ 56 VRÜ Verfassung und Recht inÜbersee 299 302.
17 In its recently adopted Nairobi Declaration on Climate Change and Call to Action,
the African Union highlights the need for global fairness when addressing climate
action. It also notes that climate finance commitments have not been honoured,fossil fuel subsidies are still prevalent, and the Loss and Damage facility is yet tobe operational. See African Union Nairobi Declaration on Climate Change andCall to Action (6 September 2023) <https://au.int/en/decisions/african-leadersnairobi-declaration-climate-change-and-call-action-preamble> para. 12.

36

Ubuntu and climate justice
It is undeniable that over time various countries have made disparate
contributions to the current climate crisis. This historical pollution is thevery reason we have the principle known as Common but DifferentiatedResponsibilities and Respective Capabilities (CBDRRC) within the context of climate change discourse. This principle can be traced back to theUnited Nations Framework Convention on Climate Change18 and continues to be a crucial underpinning aspect of the Paris Agreement.19 Fairness
is recognising that the need to implement urgently the CBDRRC responsibilities is not merely theoretical but embedded in the harsh realities thatsome nations continue to face.

2.3.1.2 Participation
Considering the injustices noted above, the participation of low-income,developing, and small island states is imperative in the global climatechange discourse.20 Having a voice means that these states have a seat at
the negotiating table and the capacity to have their concerns taken seriously.21 Participation concerns can be observed in discussions concerning a just transition. For instance, African countries argue that they want
to decarbonise to preserve the environment for present and future generations. However, their efforts will be encumbered by the need to ensurethat those who presently hold jobs in carbon-intensive industries arecatered to during the transition to greener economies. The voices of suchgroups deserve to be heard.

2.3.1.3 Intergenerational equity
Fairness also encompasses generational issues. Concerns relating tohuman rights such as the right to a healthy environment, clean air, andsanitation are affected by climate change and not only affect the current
generation but also have the potential to affect the next. The present generation owes future generations an environment that is healthy for theirwell-being, and part of that responsibility involves recognising that thisgeneration must embark on ambitious climate action if there are to be
any results.22_____________________

18 See art. 3 of the United Nations Framework Convention on Climate Change(1992).
19 See arts 2(2) and 4 of the UN General Assembly, Paris Agreement to the United
Nations Framework Convention on Climate Change.
20 This aligns more with procedural climate justice. See Peter Newell et al. ‘Toward
transformative climate justice: An emerging research agenda’ (2021) 12(6) Wiley
Interdisciplinary Reviews: Climate Change e733 4.
21 Newell et al. (n. 20) 5.
22 Ibid. 7.

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Ubuntu in the Age of Human Rights
While there is a framework for nationally determined contributions under
the Paris Agreement,23 it is important to note that the framework is notlegally binding. The lack of binding obligations poses a challenge when it
comes to enforcing climate commitments. Additionally, there is a risk ofclimate washing, where countries may commit to ambitious climate
targets, they are unlikely to meet and use these commitments to create
the appearance of making a fair contribution while not taking meaningful action. This is perhaps why globally there has been a rise in youth-led
climate activism and climate litigation driven by the need to ensure
genuine action aimed at addressing intergenerational justice for future
generations.24

2.3.2 Financing
We have broadly categorised our discussion of climate justice issues
related to finance under the following themes: accountability, vulnerability and capacity, commitments, and access.

2.3.2.1 Accountability
Climate diplomacy, exemplified by the Paris Agreement and its predecessors, has successfully drawn global attention to the issue of climatechange.25 However, the practical implementation of climate initiatives
has been slow, and a complex web of interconnected political dynamics
and injustices has further complicated the situation. This complexity includes worsening climate conditions in some regions and the prevalenceof climate politics and denialism in others.
Accountability is a crucial aspect of climate financing. It entails recognising that those countries that have historically contributed the most to
climate change bear a greater financial responsibility and commitment toaddressing climate action. In other words, countries that are still struggling to adapt to and mitigate the impacts of climate change, often because of factors such as their geographical location or low-income status,
require financial assistance. It is worth noting that developed countries,
which are the least affected by climate change, have contributed the mostto its causes.

_____________________

23 See the outlines in arts 3 and 4 of the Paris Agreement.
24 See, for example, Fridays for Future <https://fridaysforfuture.org>.
25 Dominic A Okoliko and James O David ‘Ubuntu and climate change governance:
Moving beyond conceptual conundrum’ (2021) 21 Journal of Public Affairs
e2232 1.

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Ubuntu and climate justice2.3.2.2 Vulnerability and capacity 26
Many African countries have experienced periods of colonialism that resulted in environmental degradation and limited developmental progress.
When considering their climate commitments, it is crucial to acknowledge
the vulnerability of these countries to extreme weather patterns owing totheir histories, already struggling economies and high levels of poverty.27
Small island states face their own challenges, marked by disproportionate vulnerabilities stemming from factors like sea-level rise and extreme
weather events.28 These intersecting vulnerabilities directly impede thecapacity of these states to finance climate action adequately.

2.3.2.3 Commitments and access
The acknowledgement of accountability runs parallel to the need for
redress. Often, such redress comes in the form of financial commitments
to fund climate action; however, these commitments are complicated. Ina strongly worded statement addressing the global community’s tendency
to make financial commitments that are sometimes left unfulfilled, South
Africa’s president, Cyril Ramaphosa, expressed the sentiment that African countries are occasionally made to feel like beggars.29 He made these
remarks during the recent New Global Financing Pact Summit. During alive broadcast, he commented that Africans are not convinced that manyof the summits have meaningful outcomes, and that there is a lack of confidence that many developing countries are genuinely committed to acting
on the promises they make regarding climate financing.30_____________________

26 Vulnerability can be linked to the concept of climate justice as a form of recognition. In this context, justice cannot be achieved without initial acknowledgement of pre-existing vulnerabilities. See Newell et al. (n. 20) 6.
27 See Okoliko and David (n. 25) 3, who note that ‘[a]rguably, for those in the communities where climate severity stresses life, the commitment to climate action isa matter of surrealism and not so much about rationality-understood in the context of an obsessive need to push back uncertainty in the science of climatechange’.
28 See generally Sam Adelman ‘Climate justice, loss and damage and compensation
for small island developing states’ (2016) 7 Journal of Human Rights and theEnvironment 32.
29 Vince Chadwick ‘Frustration and tentative progress at Macron finance summit’(2023)<https://www.devex.com/news/frustration-and-tentative-progress-atmacron-finance-summit-105789> (accessed 1 October 2023).
30 The Presidency of the Republic of South Africa ‘President Ramaphosa’s remarks
at Closing Ceremony of the New Global Financing Pact Summit in France’ (2023)<https://www.youtube.com/watch?v=bR36kuEzhz8&t=52s> (accessed 1 October2023).

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Ubuntu in the Age of Human Rights
In the light of the reports of the Intergovernmental Panel on Climate
Change indicating that Africa is experiencing a faster rate of warming
than the rest of the world, African leaders, in their recently agreed-upon
Nairobi Declaration on Climate Change and Call to Action, called upon
the global community to honour the commitment made 14 years ago at
the Copenhagen conference to provide $100 billion in annual climate
finance.31 They also urged the swift operationalisation of the Loss andDamage facility agreed upon at COP27.32 It goes without saying that theimplementation of the Loss and Damage facility must consider not only
past injustices that have led to extreme changes in climate patterns but
also the potential impact on future generations. This impact is exemplified by the slow onset of events such as rising sea levels and the meltingof glaciers,33 which are causing global mass migration, especially fromsmall island states and developing countries in Africa where droughts andfloods are becoming increasingly prevalent.34 The specific details of how
this facility functions and who can access its funds will depend on various
factors including lobbying and strategic diplomacy by vulnerable nations.
In summary, climate justice is a complex and contentious topic, and different regions approach it differently according to their unique circumstances and views on climate-related issues. Recently, however, owing to
the complexity of climate diplomacy, the lengthy negotiation processes,
and the slow actions taken by some states within their jurisdictions toaddress climate justice, courts have become pivotal in resolving climate
justice disputes. In the following section, we will focus on two recent
judicial processes that have garnered global attention.

2.4 Adjudicating climate justice
It is our contention that climate justice may find its true meaning, fullpotential impact, and rightful vindication through the adjudicatory
process. As is customary, courts, tribunals, and other legal accountability
forums serve as platforms for upholding and vindicating rights. It is
no surprise, then, that climate litigation has been on the rise globally,
with dedicated centres focusing on documenting climate cases, litigation_____________________

31 African Union (n. 17) para. 12(b).
32 Ibid. para. 12(c).
33 For a general discussion of loss and damage, see Adelman (n. 28).
34 International Organisation for Migration ‘In the face of climate change, migration
offers an adaptation strategy in Africa’ (2022) <https://www.iom.int/news/faceclimate-change-migration-offers-adaptation-strategy-africa> (accessed 6 November 2023).

40

Ubuntu and climate justicestrategies, and climate litigation scholarship.35 In recent times, however,three noteworthy developments have attracted global attention in therealm of climate justice. First, a climate justice case is brewing in Germany that has the potential to set a precedent for litigation against
corporations regarding their past and present emissions. Secondly, twoadvisory opinions have been sought from two global bodies on climate
justice matters. These developments are explored below.

2.4.1 Luciano Lliuya v RWE AG
Saúl Luciano Lliuya’s pursuit of climate justice against the German company RWE is a significant case with global implications.36 Lliuya, a smallscale farmer in the Peruvian Andes, resides in an area that is home toalmost all the world’s tropical glaciers. His livelihood, which also involves
working as a tour guide, is threatened by the melting of these glaciers,
which also poses immediate risks such as the potential flooding of Lake
Palcacocha.37 With the support of the environmental organisation
Germanwatch and legal representation by Hamburg lawyer Roda Verheyen, Lliuya seeks accountability from RWE. His primary goal is tosecure a $20 000 contribution from RWE to a fund dedicated to stabilising Lake Palcacocha.38 While the case was initially dismissed at the first
instance, an appeal to the Higher Regional Court, Hamm, in the case of_____________________

35 See, for example, the climate change database at Sabin Center for Climate Change
Law ‘Climate change litigation databases’ <https://climatecasechart.com>(accessed 5 September 2023) and the database of climate change laws at Grantham Research Institute on Climate Change and the Environment ‘Climatechange laws of the world’ <https://www.lse.ac.uk/granthaminstitute/researchareas/climate-change-governance-legislation-and-litigation> (accessed 5 October2023). See also the extensive climate change reports at Sabin Center for Climate
Change Law ‘Climate change litigation’ <https://climate.law.columbia.edu/
content/climate-change-litigation> (accessed 5 October 2023) and Grantham
Research Institute on Climate Change and the Environment ‘Climate change governance, legislation and litigation’ <https://www.lse.ac.uk/granthaminstitute/research-areas/climate-change-governance-legislation-and-litigation> (accessed
5 October 2023).
36 Noah Walker-Crawford ‘Climate change in the courtroom: An anthropology ofneighborly relations’ 23 Anthropological Theory 76 77. RWE is considered
Europe’s largest emitter of GHG emissions (Dan Collyns ‘German judges visit
Peru glacial lake in unprecedented climate crisis lawsuit’ The Guardian (27 May2022) <https://www.theguardian.com/environment/2022/may/27/peru-lakepalcacocha-climate-crisis-lawsuit> (accessed 12 October 2023)).
37 Walker-Crawford (n. 36) 86.
38 Ibid.

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Ubuntu in the Age of Human Rights
Luciano Lliuya v RWE AG,39 determined that the claim for damages wasadmissible.
The crux of this case revolves around ‘attribution studies’, which aim toestablish a direct link between the melting of glaciers and anthropogenic
greenhouse gas (GHG) emissions, specifically those produced by RWE.
Lliuya and Verheyen argue that there is a ‘“calculable and measurable”
correlation between global warming and the amount of CO2 emitted’ by
RWE into the atmosphere.40 RWE’s emissions are estimated to accountfor approximately 0,47% of total global emissions from 1751 to 2010.41
The establishment of this causal link is a significant milestone because it
moves the climate change discourse from mere possibilities and insinuations about attribution to concrete discussions about responsibility andaccountability. This development validates the concerns and fears ofindividuals like Saúl Lliuya in Peru, residents of small island states, andindigenous communities in Africa who have been grappling with the consequences of climate change for years.
We believe that the case highlights important justice implications including issues of vulnerability, historical pollution, accountability, financing
for adaptation measures, and loss and damage. Moreover, it is evident
from the facts that Lliuya’s territory has experienced noticeable climaticchanges and continues to do so. He and his community lack the financial
means to fund necessary adaptation measures. Additionally, Peru andthe broader region are not historically significant contributors to grossanthropogenic GHG emissions. The case, as described by WalkerCrawford,42 emphasises the concept of ‘neighbourliness’, which reframes‘climate change in terms of morally charged interactions between those
responsible for greenhouse gas emissions in one part of the world andthose who endure the detrimental consequences of global warming thousands of miles away’. As we will see, these neighbourly relations exemplify the communitarian ethos of ubuntu.

_____________________

39 Case No. 2 O 285/15 Essen Regional Court.
40 Walter Frenz ‘Mining damage liability for climate change in Peru?’ in Walter
Frenz and Axel Preuße (eds) Yearbook of Sustainable Smart Mining and Energy
2021: Technical, Economic and Legal Framework (Springer, 2022) 81.
41 Dan Collyns ‘Peruvian farmer demands climate compensation from German company’ The Guardian <https://www.theguardian.com/environment/2015/mar/
16/peruvian-farmer-demands-climate-compensation-from-german-company>(accessed 12 October 2023); Walker-Crawford (n. 36) 86.
42 Walker-Crawford (n. 36) 78.

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Ubuntu and climate justice2.4.2 The ITLOS and ICJ advisory opinions
It is worth repeating that the existing climate change regime, encompassing legal and policy frameworks and the associated negotiation processes,
frequently faces challenges relating to effective implementation.43 Consequently, many countries in the Global South, as well as small islandstates, are finding it increasingly challenging to rely solely on ongoingnegotiations that have persisted for decades without yielding concreteand practical outcomes.44 It is perhaps for this reason that in 2023 two
advisory opinions were sought, one by the United Nations General Assembly from the ICJ45 and the other by the Commission of Small Island
States on Climate Change and International Law46 from the ITLOS.47
Neither advisory opinion is binding but both carry significant persuasive
authority. For example, the ICJ explicitly states that its advisory opinions‘carry great legal weight and moral authority’.48 Similarly, the ITLOS, in a
recent decision on preliminary objections, emphasised that, although an_____________________

43 Jianping Guo, Wanqiang Li and Haoyu Tian ‘The climate advisory opinion: A
medicine with side-effects?’ (2023) 156 Marine Policy 105817.
44 Ibid.
45 UN General Assembly ‘Request for an advisory opinion of the International Courtof Justice on the obligations of States in respect of climate change’ (2023).
46 This Commission was formed against the backdrop of the 26th session of theConference of the Parties, during which two small island states, Tuvalu and Antigua and Barbuda, signed an agreement that led to the establishment of the Commission. The primary objective of establishing the Commission was to create anentity with the capacity to seek an advisory opinion from the ITLOS. While there
may be concerns regarding whether the ITLOS has jurisdiction to hear a matterand whether the matter itself is admissible, these concerns fall outside the scopeof this work. For more on ITLOS admissibility and jurisdictional issues, see
Yoshifumi Tanaka ‘The role of an advisory opinion of ITLOS in addressing climatechange: Some preliminary considerations on jurisdiction and admissibility’ (2023)
32 Review of European, Comparative & International Environmental Law 206.
47 ‘Request for an advisory opinion submitted by the Commission of Small Island
States on Climate Change and International Law’ (Request for advisory opinion
submitted to the Tribunal). Submissions and the text of the request are available
at <https://www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisoryopinion-submitted-by-the-commission-of-small-island-states-on-climatechange-and-international-law-request-for-advisory-opinion-submitted-to-thetribunal>. For a full summary of the arguments submitted, see Maria Antonia
Tigre and Korey Silverman-Roati ITLOS Advisory Opinion on Climate Change:
Summary of Briefs and Statements Submitted to the Tribunal (2023).
48 International Court of Justice ‘Advisory jurisdiction’ <https://www.icj-cij.org/
advisory-jurisdiction#:~:text=Despite%20having%20no%20binding%20force,
help%20to%20keep%20the%20peace> (accessed 29 October 2023).

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Ubuntu in the Age of Human Rights
advisory opinion is not binding, it ‘entails an authoritative statement ofinternational law on the questions with which it deals’.49
For the ICJ, the questions for which an opinion is sought are as follows:(a)What are the obligations of States under international law to ensure theprotection of the climate system and other parts of the environment fromanthropogenic emissions of greenhouse gases for States and for present
and future generations;(b)What are the legal consequences under these obligations for States wherethey, by their acts and omissions, have caused significant harm to theclimate system and other parts of the environment, with respect to:(i) States, including, in particular, small island developing States, which
due to their geographical circumstances and level of development,
are injured or specially affected by or are particularly vulnerable tothe adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affectedby the adverse effects of climate change?50

On the other hand, the questions posed to the ITLOS are as follows:
What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:(a)to prevent, reduce and control pollution of the marine environment inrelation to the deleterious effects that result or are likely to result fromclimate change, including through ocean warming and sea level rise, andocean acidification, which are caused by anthropogenic greenhouse gas
emissions into the atmosphere?

(b)

to protect and preserve the marine environment in relation to climatechange impacts, including ocean warming and sea level rise, and ocean
acidification?51

Climate justice also appears to be the central theme encompassing thequestions posed to both the ICJ and ITLOS. As neither institution nor
the German Court has yet issued its opinion, it is worth considering how
the principles of ubuntu could inform the forthcoming deliberations.
Given the challenges associated with litigating for climate justice, andconsidering the urgency and complexities of the matter, we assert that_____________________

49 Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius
and Maldives in the Indian Ocean (Mauritius/Maldives) Case No. 28 Judgment(2021) para. 202.
50 The request can be found at <https://www.icj-cij.org/case/187/request-advisoryopinion>.
51 The request can be found at <https://www.itlos.org/fileadmin/itlos/documents/
cases/31/Request_for_Advisory_Opinion_COSIS_12.12.22.pdf>.

44

Ubuntu and climate justicethese judicial bodies could make the most substantial global impact byengaging in what is often referred to as ‘expository justice’.52

2.4.3 The utility of an expository justice model for adjudicatingclimate justice
While courts play a unique role in settling climate disputes, their less
explored but perhaps more crucial role is shaping and developing norms
and standards relating to rights and fundamental values.53 This approach
was popularised by Spann four decades ago.54 Spann argues that thenotion that courts primarily resolve disputes is a charade; their more significant contribution lies in their expository role, which holds greater
benefits for the broader population through its capacity to induce changes
in attitude while facilitating social progress. Spann further argues thatwhen a court dispenses justice under the expository model ‘it does far
more than prescribe outcomes in litigated cases. It dispenses understanding of the terms of our social contract-understanding that permits anappreciation of why those outcomes are just.’55
Fisher, Scotford and Barritt56 expand on this argument by asserting thatclimate change is ‘legally disruptive’, and that this disruption necessitatesa shift in legal thinking and adjudication. An expository justice model, theargument goes, could effectively reflect this change, where the establishment and articulation of climate norms within any community are viewed
as a response to the failures of other institutions such as state and global
regulatory bodies that have failed to address climate change adequately.57
Our view is that if judicial forums adopt an expository justice model
grounded in ubuntu they could facilitate a pragmatic, timely, and potentially precedent-setting understanding of climate justice. These forums
are uniquely able to address both the moral and legal dimensions of climate change, offering guidance on how liability can be pursued and how
states should address climate justice concerns.

_____________________

52 Girardeau A Spann ‘Expository justice’ (1983) 131 University of Pennsylvania
Law Review 585.
53 Elizabeth Fisher, Eloise Scotford and Emily Barritt ‘The legally disruptive natureof climate change’ (2017) 80 The Modern Law Review 173 197.
54 Spann (n. 52).
55 Ibid. 586. See also Joanna Miles ‘Standing under the Human Rights Act 1998:
Theories of rights enforcement & the nature of public law adjudication’ (2000) 59
The Cambridge Law Journal 133 153–154.
56 Fisher, Scotford and Barritt (n. 53) 198.
57 Ibid.

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Ubuntu in the Age of Human Rights

2.5 Ubuntu ecosophy
Ubuntu, in general, is a product of African figurative/proverbial language,
much of which is the bedrock of individual and social morality.58 For thisreason, ubuntu’s ‘ecosophy’, as we shall refer to it here, is simply a multilayered story of African people’s ethical relationship with the environment.59 Without the narrative story element, it may be dismissed as mere
mythology. Therefore, our starting point is that ubuntu ecosophy is, above
all, a tale of communities and their commitment to environmental protection.
While Himonga refers to the ‘attributes’ of ubuntu, which Ndeunyemalabels ‘principles’, we refrain, for the purposes of this chapter, from
asserting that ubuntu possesses a universally applicable set of attributes
or principles, but we acknowledge the existence of specific defining normative attributes inherent in the comprehension and implementation of
the concept. Our preference for normativity aligns with the concept of
ecosophy in that any ecosophy must be based on certain defining normative principles concerning nature. However, before delving into theseprinciples, it is essential to clarify our understanding of ubuntu as aconcept.
In his chapter ‘The value of ubuntu in the pursuit of the human right towater’, Ndjodi Ndeunyema explores the expansive and collective significance of ubuntu as a pan-African concept.60 He rightly notes that ‘ubuntu
remains a unifying and enduring value that cuts across communities ofAfrican indigeneity’.61 This unifying value can be traced to the meaning ofubuntu. For context, we follow the basic interpretation of ubuntu fromits most common expression, motho ke motho ka batho, which implies
that one is a complete human being when one recognises the humanity ofothers.62 It is crucial to emphasise that this does not diminish the importance of the individual. In fact, it is the multiplicity of individuals,_____________________

58 See chap. 3.
59 There is a burgeoning literature around ubuntu and ecology which has culminated in the moniker ‘ubuntu ecosophy’. See, for example, Lesley Le Grange‘Ubuntu/Botho as ecophilosophy and ecosophy’ (2015) 49 Journal of Human
Ecology 301–308; Mogobe Ramose ‘Ecology through ubuntu’ in Roman Meinhold(ed.) Environmental Values Emerging from Cultures and Religions of the ASEAN
Region (Konrad-Adenauer-Stiftung, 2015) 69–76; Okoliko and David (n. 25); Rob
Elkington ‘Ancient wisdom for ethical leadership: Ubuntu and the ethic of ecosophy’ (2020) 13 Journal of Leadership Studies 48.
60 See chap. 3.
61 § 3.2.2.
62 Mogobe B Ramose African Philosophy Through Ubuntu (Mond Books, 1999) 106;
Okoliko and David (n. 25) 4.

46

Ubuntu and climate justicewith their unique identities, that collectively constitutes the community.
Communion therefore highlights the value of the individual through animplicit moral imperative to act in ways that safeguard the well-being of
the community.63 This moral imperative aligns seamlessly with traditional
ecological perceptions. Indigenous ecological knowledge (IEK) and its
enduring legacy reflect normative foundations for how communities relate
to their environment.
To be clear, many sub-Saharan African societies have historically reliedon IEK, which can be broadly defined as ‘the intellectual behavior andbeliefs of indigenous societies or local information about the relationshipof living beings (including humans) with one another and with theirenvironment’.64 One distinguishing characteristic of IEK is its strong
connection to specific geographic locations, which enables it to highlight‘sensitivities, exposure levels and the adaptive capacity of communities’.65
Within the African context, for instance, nature is perceived as holistic,
forming an interconnected continuum along which humans and nonhuman entities coexist in harmonious rapport.66 Communities’ actions
and lifestyles reflect a commitment to coexisting harmoniously withnature, contributing to the preservation of traditional communities’ environments over time.67 In our view, this forms the foundational basis forrecognising the utility and value of ubuntu ecosophy.68 We believe thatthe essence of ubuntu ecosophy lies in the concept of harmony withnature through IEK. This essence can be further delineated into two central themes: solidarity and due diligence.
_____________________

63 Terblanché-Greeff (n. 5) 99.
64 Olga Laiza Kupika et al. ‘Local ecological knowledge on climate change andecosystem-based adaptation strategies promote resilience in the Middle Zambezi
Biosphere Reserve, Zimbabwe’ (2019) Scientifica 1 <https://doi.org/10.1155/
2019/3069254>.
65 Caiphas Brewsters Soyapi, Michael Addaney and Habib Sani Usman ‘The role ofindigenous and experiential knowledge in advancing enhanced climate action
and policymaking in Africa’ in Michael Addaney, DB Jarbandhan and William
Kwadwo Dumenu (eds) Climate Change in Africa: Adaptation, Resilience, andPolicy Innovations (Springer, 2023) 65.
66 Chibvongodze (n. 11) 157.
67 One could say there existed an African environmental worldview and ethic
centred on the community as constituted by individuals who had a duty of care
towards their environment, with the individual gaining worth as part of thecommunity. This worldview is embedded in the ideas of ubuntu.
68 Soyapi, Addaney and Usman (n. 65) 66 make the following observation: ‘[t]o theextent that it is accepted that climate change impacts are not manifesting in a
vacuum, then it stands to reason that those who have experienced some of thechallenges associated with climate change have a contribution to make to the adaptation discussion’.

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Ubuntu in the Age of Human Rights

2.5.1 Solidarity
Within ubuntu ecosophy, there is no room for hubris, as there is an implicit recognition that we exist in a shared world. Perception and experience in this shared world are highly dependent on how others fulfil theirroles as responsible community members.69 As Ramose aptly argues,‘[t]he universe is understood as the unceasing unfoldment of interaction
and interdependence between and among all that there is’.70 In this unfoldment, the limits of one’s own space and existence in relation to thespace and existence of others is evident. This reflects the solidarity ofubuntu, which demands an ethical commitment to caring for others andthe environment. For example, if climate change is the result of humanarrogance and the adverse consequences of a human-centred approachto our interactions with the environment, ubuntu ecosophy offers the possibility of recentring our perspective. It stresses that humans are inseparable from nature: they originate from nature, are an integral part of it,
and, when they die, they ultimately return to it. From this standpoint,
climate justice extends beyond humans; it encompasses the imperative ofensuring that nature also receives the fairness it deserves. This embodies
the essence of solidarity within ubuntu ecosophy and can be further explicated through two lenses: the necessity of collective sufficiency and therole of epistemic justice as a foundation for recognition.

2.5.1.1 The need for collective sufficiency
Within ubuntu ecosophy, communities take only what they need, considering anything beyond that as wasteful or even immoral. Mawere’s
exposition of how certain communities in south-eastern Zimbabwe
manage the protection of wild loquat fruit trees and their rules regarding
harvesting highlights the presence of an ethic of care and solidarity. For
instance, these communities take turns policing the forests to prevent the
cutting down of trees during the off-season. There are rules specifying
which parts of the community can harvest the fruits and for how long.
Additionally, rules dictate how and when visitors can harvest the fruits.71
Importantly, no one is allowed to harvest more than they need, as thefruit is susceptible to quick rotting. Those who violate these communal
rules, including overharvesting, can face trial under a traditional court.72_____________________

69 Terreblanche (n. 2) 181.
70 Ramose (n. 62) 109.
71 Munyaradzi Mawere Environmental Conservation Through Ubuntu and Other
Emerging Perspectives (African Books Collective, 2013) 93–94.
72 Ibid. 94.

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Ubuntu and climate justice
Mawere’s exposition reveals that over the last two decades there has beena decline in harvests and trees because of the cessation of policing, increased commercial interest in the fruits, and the chiefs’ relocation fromthe communities to urban areas.73 This narrative underscores the aspectof harmony with nature, of communities that once understood what was
sufficient and the potential dangers or consequences of exceeding thoselimits. Balance is a central concept to grasping solidarity in this context,
as communities clearly recognised what constituted ‘wrong’ actions intheir relations with the wild loquat trees and fruits.74
This equilibrium ‘generally points to harmony comprehensively conceived
in the sense of maintaining a balance of relations, amongst humans andbetween humans and the physical (non-physical) as defining right action
from the wrong action’.75 It deems it morally wrong to harvest more thannecessary or to act greedily in exploiting natural resources.76 In our view,
ubuntu’s ecosophy sheds light on the perils of excessive consumerism
while emphasising the imperative of balance in our utilisation of natural
resources.
Excessive consumerism not only causes harm but also disrupts the pivotal
interrelationships that revolve around the community as the focal pointfrom which responsibility and concern for others and nature emanate.77
This form of consumerism can strain human relations, setting humans
against one another.78 It can also create conflicts between businesses andcommunities or communities and governments. When normal humanrelations break down, the potential for harmonious human–environment
relations diminishes. The current global climate catastrophe is, in part,
indicative of strained human interactions, a reality evident in the politics
of climate diplomacy.

_____________________

73 Ibid.
74 Ramose (n. 62) 106.
75 Okoliko and David (n. 25) 4.
76 This in some ways aligns with the idiom feta kgomo o tshware motho, which
Okoliko and David (n. 25) 6 explain as follows: ‘if and when one is faced with adecisive choice between wealth and the preservation of the life of another humanbeing then one should choose to preserve the life of another human being. Mutualcare for one another as human beings precedes concern for the accumulation andsafeguarding of wealth as though such a concern were an end in itself.’
77 Terreblanche (n. 2) 181.
78 Ibid. 183. Ubuntu ecosophy does not thrive on the idea of complete property rights
and the pursuit of over-privatisation and the commodification of nature. Rather,it accepts that nature is for all of us, that we cannot be without nature.

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Ubuntu in the Age of Human Rights
Ubuntu thinking, with its ‘Ancient Wisdom’,79 abhors excessive consumerism and instead advocates for what is described as sustainable use.80 Thisancient wisdom does not view economic value as an end in itself; rather,
it prioritises the promotion of eco-communes, which can be understoodas ‘members of an ecological community, the social and the natural systems that make up our world’.81 Within an eco-commune, any action that
does not contribute to the sustainable development of the commune isconsidered morally impermissible because it disrupts harmony.82 A question that then arises is whether capitalism would be compatible with theeco-commune principles.
The problem with capitalism lies in its foundation of homo oeconomicus
thinking, where ‘success and happiness are determined by materialistic
gratification’.83 However, there is an inherent falsehood and irony in the
pursuit of ‘false needs’ in that they can never truly be satisfied. Individuals are thus led into an endless cycle where their behaviour is primarily
driven by self-interest and greed.84 Such a perspective envisions humanity
as a collection of individuals competing for natural resources.85 Ubuntu
ecosophy stands in direct contrast to this commodification of nature.86
This is why some have even suggested that ubuntu’s emphasis on collective sufficiency could serve as an approach to degrowth, offering an alternative to conventional notions of sustainable development.87 Others argue
that a paradigm shift is necessary, urging us to transition from homooeconomicus to homo-empathicus.88 In this new paradigm, humans
would exhibit empathy towards nature, recognising that they cannot exist
apart from it. While this transformation may be a long-term endeavour,_____________________

79 Elkington (n. 59) 48–52.
80 Mawere (n. 71) 25.
81 Okoliko and David (n. 25) 6.
82 Ibid.
83 Terblanché-Greeff (n. 5) 101.
84 Ibid. ‘Homo œconomicus – economic human – pursues false needs in the nameof economic growth and development with limited attention being allocated tothe differentiation between basic and false needs’ (op. cit. (n. 5) 100).
85 Aram Ziai ‘Post-development concepts? Buen vivir, ubuntu and degrowth’ (2014)148.
86 Terreblanche (n. 2) 169.
87 Terblanché-Greeff (n. 5) 93–109.
88 Ibid. 105. In Nigeria’s Niger Delta there is a belief in the eti uwem worldview,which is based on restorative justice and demands ‘restoration, rather than compensation, for fossil fuel harms. Eti uwem, like ubuntu, means living in harmony
with nature and all peoples by communally caring for the environment. As an
ethic, it rejects the speculation, exploitation, expropriation and environmental
destruction wrought by fossil extraction’ (Terreblanche (n. 2) 176).

50

Ubuntu and climate justiceinternational judicial forums may play a vital role in balancing competinginterests and fostering this evolution
In our view, the judicial process should acknowledge the potential shortcomings of sustainable development, particularly when the interests ofindigenous communities and vulnerable societies are pitted against
developmental interests. Ubuntu ecosophy thinking calls for a judiciarythat favours the environmental interests of communities. While we
acknowledge capitalism’s legitimate place in the world, we also believethat the solidarity ethos inherent in ubuntu’s ecosophy offers insights into
the dangers of excessive consumerism and unbridled economic growth.
Vulnerable communities and the environment tend to be the primary
victims of homo oeconomicus, which is why their voices and concerns
must be heard. Therefore, a significant part of judicial responsibility lies
in navigating the delicate balance between upholding justice and safeguarding legitimate interests. This can be achieved through the aforementioned expository model, which involves setting norms and standards
informed by the idea of collective sufficiency while restraining excessive
consumerism.

2.5.1.2 Epistemic justice through ubuntu
Our view that the concerns of vulnerable communities deserve to be heardis also a matter of epistemic justice, a principle that ubuntu ecosophy
embodies. By epistemic justice we mean the recognition and acknowledgement of the vitality and legitimacy of collective experiences, and theacceptance of the value and worth of the environmental beliefs and practices of traditional communities.
Indeed, before colonisation, Africa was known to have pristine lands uponwhich communities sustained their livelihoods. These livelihoods, while
perhaps unsophisticated, were integral to the survival of these communities. However, they were often overlooked by early settlers as ‘it was far
from their conviction to think that the “nature” was good looking simply
because of the way the locals interacted with their environment and all
biodiversity in it’.89 This notwithstanding, it is important to contextualise
this interaction of communities within the harsh realities 0f Africa, acontinent renowned for its formidable challenges including deadly diseases and parasites.90 Early settlers often perceived the continent as a_____________________

89 Mawere (n. 71) 89.
90 Desmond Tutu ‘Eco-Ubuntu’ (2007) <http://www.enviropaedia.com/topic/
default.php?topic_id=336> (accessed 25 September 2023).

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Ubuntu in the Age of Human Rights
perilous place, where many succumbed to various ailments.91 In contrast,
indigenous communities had developed an ubuntu ‘ethic of relationality’,92 forming a knowledge base that allowed them to coexist harmoniously with nature and address their health and well-being in a challenging
environment.93 This is perhaps why Archbishop Tutu94 said ‘Ubuntu
emerged from the African experience of long habitation of this place, thisland’.
This epistemic knowledge base extends to conservation practices. Conservation narratives endure through practices that emphasise reverence
for forests and water bodies, which are believed to be inhabited by deities,
spirits, or ancestors.95 Another significant conservation practice involves
attributing sacred status to certain animals and plants,96 safeguarding
landscapes through cultural taboos because of the perceived sanctity of
those landscapes or because they are sources of herbal medicines.97 These
practices are intricately linked to the identity of a clan, assigning its
people the responsibility of safeguarding the animals or plants associatedwith their clan.98 In some cases, these resources are considered so sacredthat they are never to be consumed.
These connections play a crucial role in ensuring that communities
refrain from thoughtlessly tampering with or polluting natural resources.
_____________________

91 A compelling evaluation was given by some historians: ‘[i]n addition to malaria,
one of the most destructive diseases humans have ever faced, so extensive was
the barrage of African diseases that greeted the Europeans – in Crosby’s words,“blackwater fever, yellow fever, breakbone fever, bloody flux, and a whole zoo ofhelminthic parasites” – that Africa quickly became known as the “white man’s
grave”’ (DE Stannard ‘Disease, human migration, and history’ in F Kiple Kenneth(ed.) The Cambridge World History of Human Disease (Cambridge University
Press, 1993) 39). Africa is also known as the ‘infectious continent’ (Charlene
Laino ‘Africa, the infectious continent’ (2003) <https://www.nbcnews.com/id/
wbna3072106> (accessed 2 October 2023)).
92 Okoliko and David (n. 25) 5.
93 Lesley Le Grange ‘Ubuntu, ukama and the healing of nature, self and society’(2012) 44(2) Educational Philosophy and Theory 56 63.
94 Tutu (n. 90).
95 Polycarp A Ikuenobe ‘Traditional African environmental ethics and colonial
legacy’ (2014) 2 International Journal of Philosophy and Theology 1 5.
96 Godfrey B Tangwa ‘Some African reflections on biomedical and environmental
ethics’ in Kwasi Wiredu (ed.) A Companion to African Philosophy (Blackwell
Publishing Ltd, 2005) 389. Totemism is the practice of deifying animals andplants. It is one of the most prevalent yet effortless forms of conservation. See
further discussions in Mawere (n. 71) 20–21 and Le Grange (n. 93) 62.
97 Ikuenobe (n. 95) 8.
98 Mawere (n. 71) 20–21 and Le Grange (n. 93) 62.

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Ubuntu and climate justice
As a result, communities become conservationists by default, driven by
their cultural and spiritual bonds with the environment. Therefore, when
we refer to ‘river’ communities, for example, we acknowledge the inseparable connections between these communities and the environmental
elements they rely on for survival and that define their identity. The
underlying logic in this thinking is that safeguarding or protecting a river,for example, is not just an environmental act; it is an exercise of responsibility driven by humanness, undertaken for the sake of ‘river’ communities. Failure to understand or appreciate this basic premise dehumanises
the lived experiences of such communities.99
In our view, epistemic justice demands that when confronted with narratives of conservation and vulnerability an expository approach consider
them as instructive rather than as subservient to contemporary forms ofconservation. Embracing a diversity of perspectives can significantly
benefit the overall effort to deliver justice while addressing the climate
catastrophe through diversified and context-specific processes.100 It is
not surprising, therefore, that some courts in African states have started
to acknowledge the importance of respecting and recognising these indigenous communities and their practices.
In the Kenyan case of Mohamed Ali Baadi and Others v Attorney General and 11 Others,101 which revolved around the removal of fishing communities from the Lamu region to make way for the Lamu Port-South
Sudan-Ethiopia-Transport corridor, the High Court recognised the indigenous communities’ ‘views and values on environmental management’.102
The High Court emphasised that ‘when dealing with rights of indigenous
communities, their rights are to be taken seriously, sensitively and in sucha manner as to maintain their constitutional rights to a livelihood where
their livelihood depends on the environment as in the present case’.103
Even if these communities’ practices and beliefs appear unconventional,
ubuntu’s ecosophy’s solidarity dictates that acknowledging and respecting them is a fundamental aspect of humanness. In Sustaining the Wild
Coast NPC and Others v Minister of Mineral Resources and Energy and_____________________

99 Elkington (n. 59) 49.
100 See Okoliko and David (n. 25) 3, who observe that ‘Epistemic justice requires
critical attention to lop-sidedness and marginalisation of contributions to policy
discourse beyond mainstream Western education’.
101 Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR
115.
102 Ibid. para. 226. See also the South African case Gongqose v Minister of Agriculture, Forestry and Fisheries (5) SA 104 (SCA) para. 37.
103 Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR 115
para. 304.

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Ubuntu in the Age of Human Rights
Others (Shell 1),104 which concerned oil exploration, the South African
High Court found as follows:
the customary practices and spiritual relationship that the applicant communities have with the sea may be foreign to some and therefore difficult to comprehend. How can ancestors reside in the sea and how can they be disturbed,
may be asked. It is not the duty of this court to seek answers to those questions. We must accept that those practices and beliefs exist. What this case isabout is to show that had Shell consulted with the applicant communities, itwould have been informed about those practices and beliefs and would thenhave considered, with the applicant communities, the measures to be taken to
mitigate against the possible infringement of those practices and beliefs. In
terms of the constitution […] those practices and beliefs must be respected andwhere conduct offends those practices and beliefs and impacts negatively on
the environment, the court has a duty to step in and protect those who are
offended and the environment.105

In view of the overall discussion, therefore, we firmly believe that adecolonial approach necessitates the acknowledgement of activism andenvironmentalism within these communities.106 Solidarity calls for the
judicial process to reinvigorate what was lost through colonialism andvicious sedimentation by embracing the erstwhile yet relevant indigenous
practices of coexistence with nature.
Epistemic justice mandates that vulnerable communities hold an equal
stake in environmental protection, and that their perceptions of their rolein this endeavour be no less significant than those of mainstream, formal,
state-led approaches. Consequently, epistemic justice can pave the way
for the creation of a global village that recognises our interconnectedness,that our collective well-being is contingent on the well-being of others,107
or neighbourliness, as Walker-Crawford labels the Peru Andes andGerman RWE connection.108
Any court tasked with adjudicating cases that implicate indigenous community practices must value the principles of epistemic justice, emphasising the importance of understanding the perspectives, concerns, fears,
and aspirations of vulnerable communities, which are defined by their
lived experiences.

_____________________

104 Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources andEnergy and Others [2022] 1 All SA 796 (ECG); 2022 (2) SA 585 (ECG).
105 Ibid. para. 32 (emphasis added).
106 Terreblanche (n. 2) 168.
107 Terblanché-Greeff (n. 5) 105.
108 Walker-Crawford (n. 36).

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Ubuntu and climate justice2.5.2 Due diligence
When an individual harms the environment, he or she indirectly harms
the community. This ethic of care instils a profound sense of responsibility in individuals, guiding their interactions with the environment. They
remain acutely aware that others within the community will also rely onthese environmental resources. Moreover, damaging the environment isakin to an act of self-harm in that doing so ultimately affects the wellbeing of both the individual and the collective.
In essence, as Archbishop Tutu eloquently stated, ‘I am because you are.
We are because the planet is.’109 Tutu’s words beautifully encapsulate theessence of due diligence in ubuntu. It requires us to be mindful of ourcommunity’s needs and to make decisions that prioritise the community’s longevity and safeguard the environmental space that facilitatessuch longevity. Expanding on this imperative, we can identify two crucial
aspects: intergenerational equity and stewardship.

2.5.2.1 Intergenerational equity
Within Ubuntu thinking, as described by Ramose, there exists a ‘triad ofthe living, the living dead and the yet-to-be born’ who together form ‘an
unbroken and infinite chain of relations which are characteristically a
one-ness and a whole-ness at the same time’.110 This description aptly
captures a system often intertwined with spirituality, where the departed
are believed to have transitioned beyond our visible world but continue
to exist within natural elements such as waters, lands, forests, and mountains. Consequently, irresponsible treatment of these environmental
domains is vehemently disapproved of, even in the absence of supernatural repercussions.111 It is the joint responsibility of the individual andthe community to safeguard these environments. This act is not only asign of respect for and commemoration of those who have passed but also
aimed at securing an inheritance for future generations. This view resonates with Ndeunyema’s assertion that ‘ubuntu represents multigenerational experiences’.112
While written records may sometimes be absent, multi-generational ecological imperatives are preserved through oral transmission and daily
practices. In a South African case, Gongqose v Minister of Agriculture,_____________________

109 Tutu (n. 90).
110 Ramose (n. 62) 86.
111 Annalet van Schalkwyk ‘Living in the land: An Oiko-theological response to the
Amadiba Crisis Committee of Xolobeni’s struggle for ubuntu, land and ecology’
47 Missionalia: Southern African Journal of Mission Studies 31 35.
112 § 3.2.3.

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Ubuntu in the Age of Human Rights
Forestry and Fisheries,113 members of a traditional community appealed
against their conviction for fishing without a licence. They argued thatthey were exercising a customary practice and right. The High Court
acknowledged the existence of this generational right, noting that
Knowledge of the customary system was transmitted from generation to
generation, typically from father to son as regards fishing and from mother todaughter with regard to the harvesting of intertidal resources. Knowledge wasalso conveyed through a range of rituals and practices within the larger customary system within which fishing was located.114

In the context of ubuntu ecosophy, the present generation is, therefore,
entrusted with the vital role of safekeeping akin to a cell’s role within an
organism.115 An individual neglecting this responsibility would be comparable to a ‘cell that has forgotten its role in the organism’, leading to acancerous growth within the body.116
In essence, the application of ubuntu ecosophy calls upon us to express
gratitude to those who have passed before us for bequeathing a habitableworld filled with countless blessings and opportunities. It urges us to recognise that ‘we are because they were’. Similarly, ubuntu ecosophy enjoins
us to extend this same courtesy to future generations, acknowledging
that ‘they will be because we were’. We bear a profound moral obligation
to leave behind an environmental legacy that permits these future generations to look back on us with gratitude.
Furthermore, in the spirit of ubuntu ecosophy, judicial thinking mustembrace an understanding of the imperative to protect and respect theintergenerational practices and narratives of vulnerable communities.
These groups often possess a humbling awareness of their place in thisworld as they know they are not here to stay indefinitely. Yet, they are
duty-bound to do everything in their power to bequeath a habitable world
to future generations.117 This sense of duty highlights the relevance of
narratives relating to fishing, hunting, tilling, gathering, and various other_____________________

113 2018 (5) SA 104 (SCA).
114 Ibid. paras 37–38.
115 Van Schalkwyk (n. 111) 35; Le Grange (n. 93) 62.
116 Tutu (n. 90). Tutu continues the analogy, noting that the cancerous cell ‘multiplies and takes in nutrients without reference to the organs and systems aroundit, eventually overwhelming them’. He concludes that ‘[a] man with no regard for
Ubuntu is a cancer in his community. Let us not be a cancer on the Earth’.
117 Terreblanche (n. 2) 169 observes that ‘an ubuntu ethics has already played midwife to the radical notion of post-extractivism, that is, leaving behind for future
generations the fossil fuels and minerals that drive destructive capitalist accumulation and its crises, notably climate change’.

56

Ubuntu and climate justicepractices. These narratives find their true worth when there exists an environment in which recipients of the story can relive and replicate thesepractices.

2.5.2.2 Stewardship
Closely linked to the idea of intergenerational equity is the imperative thatsuch equity places on the present generation: the duty to act as stewardsof the environment. In its simplest form, stewardship assigns individuals
a responsibility to interact with the environment with due diligence, torecognise its significance for their own well-being, the welfare of theircommunities, and the prosperity of future generations.118
As Elkington astutely observes, the ubuntu worldview acknowledges theexistence of a reciprocal relationship between communities and theenvironment:
Ubuntu is a systemic worldview that suggests that the greatest good arises
from a commitment to mutual beneficence and beneficence toward the planet.
When we care for the planet effectively, we will have the resources to support
such beneficence. Ubuntu, then, suggests that leadership is stewardship formutual beneficence.119

Implicit in this perspective is the responsibility for maintaining environmental health, as the well-being of communities is intertwined with it,
and it serves as a vital legacy for future generations.120
In the Gongqose case, the South African High Court went to great lengths
to assert that even the principles of sustainable development cannot override the environmental imperatives followed by communities and the responsibilities of those communities to safeguard their interests according
to their own interpretations of sustainability. In fact, the court emphatically declared that
Customary rights and conservation can co-exist. And it is important to remember that as regards conservation and long-term sustainable utilisation ofmarine resources in the MPA, the Dwesa-Cwebe communities have a greaterinterest in marine resources associated with their traditions and customs, thanany other people. These customs recognise the need to sustain the resourcesthat the sea provides. For these reasons, and more particularly, that thecustomary law of the Dwesa-Cwebe communities provides for sustainable_____________________

118 Tutu (n. 90) has observed that ‘We are totally dependent on the ecosystems which
support us, so to see those ecosystems as “us”, as a system that we are embeddedin, as an extension of our being is pragmatic, and accurate. As is the traditional
practice of Ubuntu.’
119 Elkington (n. 59) 49.
120 Van Schalkwyk (n. 111) 35.

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Ubuntu in the Age of Human Rights
conservation and utilisation of resources, the high court’s finding that by concluding the restoration agreement, the communities had accepted ‘that theywould access the sea in accordance with the dictates of the law giving expression to the concept of sustainable development’, is insupportable.121

The court’s statement carries significant weight, resonating with the perspective that these communities, despite their position within humanity’s
privileged ranks, recognise their inseparable connection to and integration with nature and all its elements. This recognition endows them witha profound sense of stewardship: they understand that they are as integral
to nature as bees are to a hive or ants to a nest. In essence, this recognition underscores the idea that ‘[a] human, or human couple [has] as muchchance of survival in the African wilderness as a bee away from the hive,
or an ant away from the nest’.122
While the relationship between the individual and the community is complementary, with the individual deriving meaning from the community
and the community relying on the individual for its completeness andexistence,123 the interactions of the individual and community with nature
are more vertically layered. Both the community and the individual are
fundamentally dependent on nature for their very existence. It is thisshared vulnerability, experienced by the individual when alone and as
part of the community, that gives the concept of ubuntu ecosophy its custodial significance and dimension.

2.6 Outlook
Our discussion underscores how ubuntu ecosophy embraces practices
that may initially appear unusual or unconventional to outsiders. This isparticularly evident in the acceptance of taboos and totemisms, which,on the surface, may not seem grounded in Western rationality. However,within the ubuntu framework, indigenous practices hold deep significanceas moral principles that shape behaviour, foster character development,
facilitate community socialisation, and cultivate an awareness of theinterconnectedness between humanity and nature. Ubuntu ecosophy provides an ethical approach to the environment, rejecting anthropocentrism
and recognising our inextricable relationship with the natural world.

_____________________

121 Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 (5) SA 104(SCA) para. 56.
122 Tutu (n. 90).
123 Ramose (n. 62) 106.

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Ubuntu and climate justice
While climate litigation has gained global prominence, the Peruvian caseand the advisory opinions of the ITLOS and ICJ could be pivotal in establishing frameworks in which states can fulfil their climate justice obligations and corporations can play their part by addressing their historicalliability for anthropogenic GHG emissions.
With its intrinsic value and influence lying in its narrative-based foundations, ubuntu ecosophy could be relevant for these judicial bodies. By
adopting a storytelling approach that encompasses a community’s origin
and evolution, along with its interdependent relationship with the environment, ubuntu ecosophy adds a human element to the narrative,
which could naturally elicit empathy and a sense of shared humanity fromthose unfamiliar with it. Ubuntu encourages individuals to see themselves
in others, enhancing their understanding of the challenges and significance of the circumstances before them.
In the end, it is important to note that an approach to climate change andclimate justice that is infused with ubuntu ecosophy is not a one-size-fitsall solution. Instead, it offers a framework for thinking and, for a court,
may provide a justifiable basis for finding corporations liable for historical pollution, or for requiring states or administrators to justify theirdecisions and approaches comprehensively and empathetically.

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3

The value of ubuntu
in the pursuit of the human right to water
Ndjodi Ndeunyema *3.1 Introduction: A brief profile of water in Africa
Fresh water is an essential resource for not only human societies but also
for terrestrial life, ecosystems, and biodiversity.1 In Africa, the scientificevidence is that ‘continental water is stored in various reservoirs, unevenly distributed across geophysical environments and climates’,2 withthe water sources including ‘seasonal ice and snow, glaciers and ice caps,
aquifers, soil water and soil moisture, and surface waters’.3 These water
sources are critical for the survival of every being, for domestic andpersonal use and for commercial pursuits.
Africa is home to some of the most impressive and expansive freshwater
systems globally. These include the world’s longest river, the Nile, which
also feeds the second-largest water basin in terms of both drainage areaand discharge into the ocean.4 Africa hosts three of the ten largest freshwater lakes on Earth, in terms of area and volume: lakes Victoria, Tanganyika, and Malawi.5 Moreover, Africa is also home to various wetlands_____________________* Qualified Solicitor (England & Wales); BCL, DPhil in Law, MPhil, MSc (University of Oxford); LLB, BJuris (University of Namibia); Diploma in Socio-Economic
Rights (Åbo Akademi University); Certificate in Human Rights Implementation(University of Lucerne). We are grateful to Prince Zongwe for his helpful comments on the draft and to Asang Wankende for his editorial assistance. The author
writes in his personal capacity and the views and opinions he expresses are hisown.
1 Fabrice Papa, Jean-François Crétaux, Manuela Grippa, Elodie Robert, Mark Trigg,
Raphael M Tshimanga, Benjamin Kitambo, Adrien Paris, Andrew Carr, Ayan
Santos Fleischmann, Mathilde de Fleury, Paul Gerard Gbetkom, Beatriz Calmettes
and Stephane Calmant ‘Water resources in Africa under global change: Monitoring surface waters from space’ (2023) 44 Surveys in Geophysics 43.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.

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Ubuntu in the Age of Human Rights
and floodplains in the Congo, Chad, Niger, Okavango, and Nile basins,
which are of global significance for biodiversity and the carbon and nutrient cycles.6 Perhaps the most majestic water body is Mosi-oa-Tunya, or‘the smoke that thunders’, as Victoria Falls is domestically known. Papa
et al. note that some of Africa’s regions remain largely covered by tropicalforests that act ‘as a carbon sink that stores billions of tons of carbon’.7
Smaller water systems – including streams, reservoirs, ponds, and tanks– also form part of the African landscape and constitute the direct sourcesof domestic-use water, food, and agricultural activities for many of thelargely rural inhabitants in sub-Saharan Africa.8
Despite all these impressive water sources, access to water remains a significant challenge for many Africans. Although substantial progress has
been made on the continent over the last few decades, too many Africans
still lack even a basic level of drinking-water service. The 2023 UN Global
Water Security Assessment found that almost 31% of people in the 54 African countries (over 411 million) do not have access to a basic drinkingwater service, while only 201 million people (15%) have access to safely
managed drinking water, which is the target of United Nations Sustainable Development Goal 6.1.9 The problem of water scarcity in Africa is
expected to worsen in that it is estimated that by 2025 nearly 230 million
people in Africa will experience water scarcity while as many as 460 million may be living in areas where water access is under stress.10 As theIntergovernmental Panel on Climate Change has noted, climate change
induced by greenhouse gas emissions has exacerbated the water challenges by increasing the likelihood of severe, pervasive and irreversible
climate impacts including intense droughts and water scarcity.11_____________________

6 Ibid.
7 Ibid.
8 Ibid. 44.
9 Charlotte MacAlister et al. ‘Global water security: 2023 Assessment’ (United
Nations University, Institute for Water, Environment and Health, 2023) 10<https://inweh.unu.edu/wp-content/uploads/2023/03/Global-Water-SecurityAssessement-2023_F.pdf> (accessed 24 September 2023).
10 African Development Bank Group, ‘World Water Day 2023: Accelerating change
in solving Africa’s water and sanitation crises’ (ADB, 22 March 2023) <https://www.afdb.org/en/news-and-events/world-water-day-2023-accelerating-changesolving-africas-water-and-sanitation-crises-59935#_ftn1> (accessed 24 September 2023).
11 Intergovernmental Panel on Climate Change ‘Summary for policymakers’, HansOtto Pörtner et al. (eds) paras. B.1.1–B.1.3, in Climate Change 2022: Impacts,
Adaptation and Vulnerability. Contribution of Working Group II to the Sixth
Assessment Report of the Intergovernmental Panel on Climate Change, Hans-Otto
Pörtner et al. (eds) <https://www.ipcc.ch/report/ar6/wg2/downloads/report/
IPCC_AR6_WGII_SummaryForPolicymakers.pdf> (accessed 24 September 2023).

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The value of ubuntu in the pursuit of the human right to water
Ensuring that people in Africa and other regions can fully access waterrequires that stakeholders intervene in a variety of ways including
through financing, infrastructure development, water technologies, andnew water management initiatives. In this chapter we consider how thelaw generally and courts as institutions can play a role in ensuring accessto water for every African. In so doing, we consider the value of ubuntu
as a grundnorm that can be employed to assert the existence of a humanright to water in an African constitutional setting.
We have therefore structured this chapter as follows. Following this introduction, section two unpacks ubuntu through its etymology and its core
meaning, and identifies five key principles of ubuntu: community, responsibility, interdependence, dignity, and solidarity. Thereafter, we provide
a normative analysis of the human right to water in the African context
by singling out some constitutions that have expressly asserted the rightto water and highlight some seminal water-related judicial decisions fromAfrican jurisdictions. We then consider the status of water as a humanright under international law, which would potentially be binding in certain African jurisdictions. We therefore discuss international law sourcesthat include either an implied or express right to water. The chapter thenmoves on to consider how individuals can legally invoke ubuntu to imply
a human right to water where a given African constitution does not
expressly recognise such a right before rounding off with a forwardlooking conclusion.

3.2 Ubuntu: etymology and definition12
In this section we introduce the substance of ubuntu and examine its
etymological origins as an African value. We define ubuntu and spell out
its principles so as to comprehend it legally. Before doing this, however,
we advance ubuntu through decolonial practice.

3.2.1 Ubuntu as decolonial thought
Ubuntu is a seminal metaphilosophy, value, and ethic drawn from diverse
African indigenous justice systems.13 Its centrality, particularly in the context of African human rights, is well captured by Himonga’s observationthat enhancing human rights implementation in Africa is a prominent_____________________

12 Ndjodi Ndeunyema Re-invigorating Ubuntu through Water: A Human Right toWater under the Namibian Constitution (Pretoria University Law Press, 2021);
Ndjodi Ndeunyema ‘Reforming the purposes of sentencing to affirm African values
in Namibia’ (2019) 63 Journal of African Law 329.
13 Oko Elechi, Sherill Morris and Edward Schauer ‘Restoring justice (ubuntu): An
African perspective’ (2010) 20 Int. Crim. Justice Rev. 73 75.

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Ubuntu in the Age of Human Rights
justification for, at least, investigating the role that African concepts canplay in the realisation of human rights including the right to water.14 It is
the lack of actual or perceived cultural legitimacy of human rights amongits intended (African) beneficiaries that is often cited as one of the foremost challenges to enforcing human rights in Africa.15 Scholars have exposed the continuing incongruence between those values that have cometo underpin the dominant Euro-American human rights paradigm and‘alien’ notions of justice that were first introduced through colonial conquest and have since entrenched themselves in the societies of formerlycolonised peoples including Africans.16 Moreover, top-down transplantations of legal approaches have rarely taken root. At best, they yield poor
results. As Lord Denning put it, ‘Just as with an English oak, so with theEnglish common law. You cannot transplant it to the African continentand expect it to retain the tough character which it has in England.’17
As Mahao explains, ‘the values underpinning the dominant rights paradigm are, by and large, removed from notions of justice as understoodand lived by the vast majority of people previously colonised in places
such as Africa’.18 Therefore, Mahao continues, ‘mainstreaming indigenous juridical principles in the legal system holds the promise of goingsome distance towards legitimising the system. Inherently, however, thisentails an epistemological shift in world outlook’.19 Consequently, imbuing human rights with localised, participative approaches such as African
values can enhance the legitimacy of the idea of human rights.
In the forthcoming sections we advance the substantive justifications forubuntu, and consider its etymology, meaning, and underlying principles.
While ubuntu is not expressly mentioned in any other African constitution,20 it can, as an unexpressed constitutional value, be asserted and_____________________

14 Chuma Himonga ‘The right to health in an African cultural context: The role ofubuntu’ (2013) 57 Journal of African Law 165; Bonny Ibahwoh ‘Between culture
and constitution: Evaluating the cultural legitimacy of human rights in the African state’ (2000) 22 HRQ 838.
15 See Himonga (n. 14) 165 and the authorities cited there.
16 Yvonne Mokgoro and Stu Woolman ‘Where dignity ends and ubuntu begins: An
amplification of, as well as an identification of a tension in, Drucilla Cornell’sthoughts’ (2010) 25 SAPL 400 406 and sources cited there.
17 Nyali Ltd v Attorney-General [1955] 1 All ER 646 653.
18 Nqosa Mahao ‘Can African juridical principles redeem and legitimise contemporary human rights jurisprudence?’ (2016) 49 Comparative and International Law
Journal of Southern Africa 455 456.
19 Ibid.
20 For a history of ubuntu in South Africa, see Drucilla Cornell and Nyoko Muvangua
Ubuntu and the Law: African Ideals and Post-Apartheid Jurisprudence (Fordham University Press, 2012) 7. For a viewpoint on the textual omission of ubuntu
from the 1996 South African Constitution, see Stewart Motha, ‘Archiving colonial[continued on next page]64

The value of ubuntu in the pursuit of the human right to water
grounded in a constitution provided that such an ubuntu reading does noviolence to the text or spirit of that constitution. The 1993 interim South
African Constitution mentions ubuntu in its postamble/epilogue, in thecontext of providing ‘a need for understanding but not for vengeance, aneed for reparation but not for retaliation, a need for ubuntu but not for
victimisation’.21
We also advance ubuntu’s centrality as an apposite value premise, given
its presence within African indigenous justice systems and its wide
acceptance as accurately capturing an overarching African worldview,
although ubuntu approaches are not without demur. There is also a comparatively advanced understanding of ubuntu, which is probably result of
the concept’s extensive application, deconstruction, and endorsement in
African socio-cultural life, within the academic literature and in leading
judicial pronouncements drawn from African comparative perspectives.22

3.2.2 Etymology of ubuntu
When Chinua Achebe in his much-acclaimed novel Things Fall Apartaffirmed that ‘proverbs are the palm-oil with which words are eaten’,23
he captured the figurative essence that the tissue of African language isfigurative. It is therefore unsurprising that the etymological roots ofubuntu24 are found in proverbial expressions. Analysing ubuntu’s etymology has proved particularly useful in anticipating and counteracting
the potential claim that ubuntu is insufficiently shared by and within
African societies. A more ‘neutral’ value such as dignity, the argument
goes, would be more unifying in value-pluralist societies.25_____________________

sovereignty: From ubuntu to a jurisprudence of sacrifice’ (2009) 24 SAPL 305
306, who speculates that this omission may be attributed to the ‘the North American “plain language” drafters’, or to the notion that ubuntu was ‘merely an indigenous flourish that got people through hard times’, or that its ‘momentary
appearance in the interim Constitution [was] the excessive mark of an excessive
demand for peace, forgiveness, and community’.
21 Mokgoro and Woolman (n. 16) 402.
22 For a rich resource exploring ubuntu in Africa broadly through theory, judicial
decisions and legislation, see Christa Rautenbach ‘Exploring the contribution of
ubuntu in constitutional adjudication: Towards indigenisation of constitutionalism in South Africa?’ in Charles Fombad (ed.) Constitutional Adjudication in
Africa (OUP, 2017) 293.
23 Chinua Achebe Things Fall Apart (Anchor Books, 1958) 6.
24 Scholars have employed linguistic and stylistic variations in their references toubuntu, including ‘ubuntu’, ‘botho’ or ‘umbuntu’. We refer to ‘ubuntu’.
25 David Bilchitz ‘How should judges adjudicate in an African constitutional democracy’ in David Bilchitz et al. (eds) Jurisprudence in an African Context (OUP,
2017) 67 and 94.

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Ubuntu in the Age of Human Rights
Ubuntu’s most common formulation is umuntu ngumuntu ngabantu, an
isiZulu expression from South Africa that translates approximately to thelaconic phrase ‘a human being is a human being through (the othernessof) other human beings’.26 Nevertheless, ubuntu’s essence remains an
expression of African philosophy27 and has been described as a centuriesold African philosophy and way of life that has sustained African communities and continues to be ‘a set of institutionalised ideals which guideand direct the patterns of life of Africans’.28 We will return to defining
ubuntu and elaborating its principles in the legal sense in the forthcoming sections of this chapter but focus here on the etymological aspects.
Although of Nguni extraction, Kamwangamalu29 has comprehensively
studied ubuntu’s meaning from a wider African linguistic perspective. He
persuasively argues that the concept of ubuntu is pan-African and can befound in many African languages and cultures. While not necessarily
under a common name, ubuntu permeates across African societies
through gimuntu (giKwese, Angola), bomoto (iBobangi, Congo), umundu(Kikuyu, Kenya), vumuntu (xiTsonga, Mozambique) and bumuntu(kiSukuma, Tanzania), to mention a few.30 Other similar concepts would
include ubumwe31 (Kinyarwanda, Rwanda), humwe32 (Shona, Zimbabwe)
and omundu menarovandu (OvaHerero, Namibia). Despite ubuntu’s
diverse renditions, the suffix -ntu, -nhu or -ndu found in many African_____________________

26 Ubuntu is often contrasted with René Descartes’s cogito ergo sum or ‘I think
therefore I am’, which is often said to have become a fundamental element of socalled Western individualism.
27 Mukoma wa Ngugi ‘Africa is not a proverb’ Black Commentator (23 April 2009)<http://www.blackcommentator.com/321/321_africa_not_proverb_guest_wa_
ngugi.html> (accessed 21 September 2023).
28 Godwin Sogolo Foundations of African Philosophy (Ibadan University Press,
1993) 11; Mluleki Mnyaka ‘The African concept of ubuntu/Botho and its sociomoral significance’ (2005) 3 Black Theology 215. See also VY Mudembi The
Invention of Africa: Gnosis, Philosophy, and the Order of Knowledge (Indiana
University Press, 1988).
29 MN Kamwangamalu ‘Ubuntu: A sociolinguistic perspective to a pan-African concept’ (1990) 13 Critical Arts 24.
30 Christian Gade ‘What is ubuntu? Different interpretations among South Africans
of African descent’ (2012) 31 SAJP 486; Dirk J Louw ‘The African concept ofubuntu and restorative justice’ in Dennis Sullivan and Larry Tifft (eds) Handbookof Restorative Justice (Taylor & Francis, 2008) 161.
31 Andrea Purdeková Making Ubumwe: Power, State and Camps in Rwanda’s
Unity-Building Project (Berghahn Books, 2015) 147.
32 Ben Chigara ‘The Humwe principle: A social ordering grundnorm for Zimbabwe
and Africa?’ in Robert Home (ed.) Essays in African Land Law (PUP, 2011) 113.

66

The value of ubuntu in the pursuit of the human right to waterlanguage groups almost invariably connotes ‘person’ or ‘people’ or‘humanness’.33
Beyond linguistic intersections, scholars have identified expressions conveying the ethos of ubuntu in parts of east, west, and southern Africa
such as cieng (pronounced ‘cheng’) of the Dinka peoples in South Sudan
and the Upper Nile region.34 The Afrocentric philosopher Sheik Anta
Diop has gone even further in demonstrating ubuntu’s permeation acrossthe divide between North and sub-Saharan Africa through the ancient
Egyptian concept of Ma’at.35 However, we confine our analysis to ubuntu
as a sub-Saharan African value.
Ubuntu’s ubiquity across sub-Saharan Africa deserves emphasis, given
the reality that African borders – in their existing territorial sense at least– can be described as an accident of history, conceived through the political and economic self-interest of colonial powers following the infamous
Berlin Conference of 1884–1885 that resulted in the malignant carving
up of Africa. While a plurality of ethnicities, traditions, cultures, norms,
and values exists in Africa, ubuntu remains a unifying and enduring valuethat cuts across communities of African indigeneity.
While we refer to ‘Africa’, we do so with ambivalence and caution, aiming
to avoid the problematic ‘white gaze’ of homogenising Africa or perpetuating the monolithisation of its people. This is in full appreciation of thereality that Africa is not a country. Africa’s diversity is as voluminous asits geography, a truism that cuts across ethos, values, and cultural andsocial slants.36

3.2.3 Defining ubuntu
In African social-cultural life, the substance of philosophies, concepts,
and values such as ubuntu is often communicated creatively. This is_____________________

33 S Lwanga-Lunyiigo and J Vansina ‘The Bantu-speaking peoples and their expansion’ in M El Fasi and I Hrbek (eds) General History of Africa Vol. III: Africa
from the Seventh to the Eleventh Century (UNESCO, 1988) 140–142.
34 Makau wa Mutua ‘The Banjul Charter and the African cultural fingerprint: An
evaluation of the language of duties’ (1995) 35 Va. J. Int’l L. 339.
35 Cheik Anta Diop Pre-Colonial Black Africa (Chicago Review Press, 1988) 141. See
also the Manden Charter of the 13th century Malian empire, during the reign ofSunjata Keita, which is considered one of the earliest human rights documents.
The Manden Charter is often compared with the Magna Carta of 1215, although
the Magna Carta was specifically focused on the freedom of privileged landlords
to control their own property. See Laura Quaynor ‘Remembering West African
indigenous knowledges and practices in citizenship education research’ (2018) 48
Compare: A Journal of Comparative and International Education 362.
36 Kwame Appiah ‘The arts of Africa’ (1997) 44 New York Review of Books 46.

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Ubuntu in the Age of Human Rights
because, as Ongyango and Mapaure both suggest, indigenous African
justice systems and customary laws reflect those values enshrined overtime by ancestors.37 African customary laws and values such as ubuntu
are generationally passed down by elders through oral traditions38 that
include idioms, musicology, and folklore, in the process becoming binding on community members ‘since time immemorial’.39 The artistic communication of ubuntu results in varied interpretative renditions from one
community to another. This reality may have led to the view of somescholars that ubuntu resists easy definition, being ‘recognised when practised’, existing ‘only when people interact with each other’, and being
incapable of being ‘neatly categorised and defined [as] any definition
would only be a simplification of a more expansive, flexible and philosophically accommodative idea’.40
Some scholars such as Mokgoro assert that ubuntu’s content becomes‘elusive’ when discussed in a foreign language.41 However, the more persuasive approach in our view is that advanced by Himonga et al., who
maintain that while ubuntu is not easy to define one must nevertheless
be able to discuss and understand it in what many may regard as foreign
languages.42 The difficulty in discussing ubuntu should neither surprisenor delegitimise it as a value premise; expressive obtuseness is a featureof various abstract notions (including established concepts like dignity,
equality, and liberty) that inform constitutional values, rules, and principles across societies. The reality of expressive obtuseness must be
grappled with and debated through language, even colonial ones. The
challenge is to strive towards a shared and accepted understanding of_____________________

37 Peter Ongyango African Customary Law: An Introduction (Law Africa Publishing, 2013) 153; Clever Mapaure ‘Reinvigorating African values for SADC’ (2011) 1
SADC Law Journal 148 152.
38 Effa Okupa ‘Is African customary law just?’ in Manfred Hinz and Clever Mapaure(eds) In Search of Justice and Peace: Traditional and Informal Justice Systems
in Africa (Namibia Scientific Society, 2010) 341.
39 The phrase ‘since time immemorial’ is the formulation widely used in an African
traditional context to ascertain legitimacy. See Manfred Hinz ‘Traditional governance and African customary law’ in Nico Horn and Anton Bösl (eds) Human
Rights and the Rule of Law in Namibia (Macmillan Namibia, 2008) 59.
40 Yvonne Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 1 Potchefstroom
Electronic Law Journal 1 2; John Faris ‘African customary law and common law
in South Africa: Reconciling contending legal systems’ (2015) 10 International
Journal of African Renaissance Studies – Multi-, Inter- and Transdisciplinarity
177 178.
41 Mokgoro (n. 40) 2.
42 Chuma Himonga, Max Taylor and Anne Pope ‘Reflections on judicial views ofubuntu’ (2013) 16 Potchefstroom Electronic Law Journal 374.

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The value of ubuntu in the pursuit of the human right to water
ubuntu for communicating how to interpret a bill of rights.43 We view
overcoming this challenge as a sine qua non for the acceptance and efficacy of ubuntu as a viable legal concept for incorporation within thebreadth of jurisdictions in Africa and on other continents. To this end,
we will endeavour to grapple with defining ubuntu and teasing out its
substance.
When defined through a socio-cultural lens, ubuntu represents multigenerational experiences. It is a multi-dimensional and relational worldview of African ontological values of interconnectedness, common humanity, collective sharing, obedience, humility, solidarity, communalism,
dignity, and responsibility for one another.44 Ubuntu is a prescription fortreating others as one would like to be treated. It also represents a command to care for one another and to embrace the principles of reciprocity
and mutual support. While this definitional exposition of ubuntu is a goodstarting point, it is overly cross-cutting and unhelpfully dense, and therefore will not suffice for the purposes of ubuntu’s legal conceptualisation.
The celebrated Makwanyane45 decision of the South African Constitutional Court pioneered the judicial explication of ubuntu as a legal concept.
While Makwanyane addressed ubuntu in relation to the constitutionalityof capital punishment under the 1996 South African Constitution, theConstitutional Court’s various concurring opinions were able to define
and isolate the key features of ubuntu. Ubuntu carries ideas of ‘humaneness, social justice and fairness’46 and places ‘emphasis on communality
and on the interdependence of the members of a community’, thereby
recognising a person’s status as a human being who is entitled to unconditional respect, dignity, value, and acceptance from community members.47 Mahomed J’s obiter dictum in Makwanyane48 that articulates theethos of ubuntu is worth quoting:[Ubuntu] expresses the ethos of an instinctive capacity for and enjoyment oflove towards our fellow men and women; the joy and the fulfilment involved
in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions
which it engenders and the moral energies which it releases both in the givers
and the society which they serve and are served by.
_____________________

43 Ibid. 378.
44 Elechi et al. (n. 13) 75; Kamwangamalu (n. 29) 26; Mnyaka (n. 2828) 215.
45 S v Makwanyane & Another 1995 (3) SA 391 (CC).
46 Ibid. [237] per Madala J.
47 Ibid. [224].
48 Ibid. [263] per Mahomed J. See also Afri-Forum & Another v Malema & Others[2011] (6) SA 240 (EqC) [18], where the South African Equality Court identifies
12 salient features of ubuntu.

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Ubuntu in the Age of Human Rights
Mahomed J continues to say that ubuntu is personhood and morality, anddescribes the significance of group solidarity on survival issues so central
to the survival of communities.49 For her part, Mokgoro J asserts thatubuntu ‘envelops the key values of group solidarity, compassion, respect,human dignity, conformity to basic norms and collective unity, [which]in its fundamental sense it denotes humanity and morality’.50
Beyond the South African judicial landscape, ubuntu has been judiciallyrecognised and asserted in other African jurisdictions. The Lesotho High
Court in Mokoena v Mokoena,51 a case concerning succession under customary land rights, determined:52[T]he widow has a customary law right to expect her late husband’s relatives
to protect her and the property that her husband left her with … It is contrary
to Basotho culture, good conscience and a sense of what is right in the African
sense – that applicant should be attempting to deprive the widow of her houseand arable lands (masimo). It is not botho or ubuntu to dispossess a widow.

Similarly, the Lesotho High Court in Thabo Fuma,53 while not referring
to ubuntu per se, quotes the South African Constitutional Court’s Hoffmann54 decision that linked dignity and ubuntu to conclude that thedenial of employment to an HIV-positive soldier constituted unfair
discrimination.
In Uganda, the Constitutional Court in Abuki,55 a case concerning theconstitutionality of the Ugandan Witchcraft Act, stated:
Of course, the concept of ‘ubuntu’, the idea that being human entails humaneness to other people, is not confined to South Africa or any particular ethnic
group in Uganda. It is the whole mark [sic] of civilised societies […] It will berecalled that the word ‘ubuntu’, though linguistically peculiar to only certain
groups, is a concept embraced by all the communities of Uganda.
_____________________

49 S v Makwanyane & Another 1995 (3) SA 391 (CC) [263] per Mahomed J.
50 Ibid. [307] per Mokgoro J.
51 Mokoena v Mokoena [2007] LSHC 14 (Lesotho High Court).
52 Ibid. [36]–[37] (emphasis added). Commenting on Mokoena’s recourse to ubuntu,
Rautenbach (n. 22) 300 remarks: ‘The court did not explain the meaning ofubuntu, and it is evident that, being a native Sesotho speaker, he, and probably
everyone else involved in the case, knew exactly what it meant from “experience”’.
53 Thabo Fuma v The Commander, Lesotho Defence Force [2013] LSHC 68 (Lesotho High Court).
54 Hoffmann v South African Airways 2001 (1) SA 1 (CC).
55 Solvatori Abuki & Another v Attorney-General [1997] UGCC 10 (emphasis added).
See also Satrose Ayuma v Registered Trustees of the Kenya Railways Staff
Retirement Benefits Scheme [2013] eKLR [26], where the Kenyan High Court, inthe context of forced evictions and the right to housing, refers to the submissionof Professor Yash Ghai on ubuntu, where he refers to Makwanyane, one of thepetitioners, but does not expressly accept or reject the ubuntu reference.

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The value of ubuntu in the pursuit of the human right to water
Abuki asserts that ubuntu is not confined to South Africa. It is essential
to avoid oppositionalising ubuntu as a value within African law andphilosophy as opposed to, for example, Eurasian law and philosophy.
Admittedly, the attraction of oppositionalisation is strong, given theubiquity of binarised approaches in legal conceptions. While one should
remain alive to the danger of seeking to legitimise the legal worth ofknowledge from the Global South and perspectives such as ubuntu
through the prism of Western sensibilities, drawing on non-African
thought can also help imagine and understand ubuntu as a relatively
underexplored legal concept.
Letseka, for instance, invokes comparativism in the context of education
to identify the traits shared by ubuntu and the Germanic notion of bildung. Bildung ‘is about linking the self to the world in the most general,most animated and most unrestrained interplay … bildung as mimetic,that is, as non-teleological, undetermined and uncertain, and aimed at
the reconciliation between outer historic-social and inner individual conditions’.56 Additionally, the concept of ‘recognition’, as developed by
Hegel and cited by Fredman, has a notable foundational view that retains
ubuntuesque features. Like ubuntu, ‘recognition’ holds that individual
identity derives from intersubjective recognition within the context ofsocial relations and, again like ubuntu, allows an individual to become an
individual only by recognising others and being recognised by them.57

3.2.4 The principles of ubuntu
It may be argued that ubuntu’s abstractness and lack of precise definition
make it potentially consistent with the very nature of values in a constitution,58 and that we can best understand and apply ubuntu by identifying its central interrelated principles.59 We depart from Himonga’s references to ‘attributes’ as ‘principles’ of ubuntu and will therefore unpack_____________________

56 Moeketsi Letseka ‘In defence of ubuntu’ (2012) 31 Studies in Philosophy and
Education 47–60 cites the German bildung scholar Wilhelm von Humboldt.
Relatedly, the common-law remedy of amende honorable (honourable amends)
is likened to ubuntu in Dikoko v Mokhatla 2006 (6) SA 235 (CC) [116] per Sachs
J. For a critique of this approach, see Rautenbach (n. 22) 300.
57 Georg Hegel Phenomenology of Spirit (OUP, 1977) 104–109, cited in Sandra
Fredman ‘Redistribution and recognition: Reconciling inequalities’ (2007) 23
South African Journal on Human Rights 215.
58 Himonga (n. 1414) 173. It is important to highlight the fact that Himonga’s workon ubuntu is retrospective, looking at the right to health in South Africa and how
ubuntu has affected its interpretation.
59 Ibid.

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Ubuntu in the Age of Human Rights
ubuntu’s central yet overlapping principles: community, interdependence,solidarity, responsibility and dignity.60

3.2.4.1 Community
Ubuntu includes the central idea of community whereby a relationshipexists between the community and the individual. As Langa CJ describes
ubuntu’s communitarianism, ‘we [Africans] are not islands unto ourselves’.61 Here, we adopt Gyekye’s concept of ‘community’ as a ‘culturalcommunity’, which means ‘a group of people with shared values andpractices and a shared notion of common good, whether or not it has ashared language’.62 Gyekye’s definition of community allows us to conceptualise ubuntu communitarianism notwithstanding the differences inubuntu’s linguistic formulation, focusing more on the shared ‘habits, outlooks, practices, institutions, and cultural values’ in a community.63 Thus,
the idea of community as an element of ubuntu can apply to groups
beyond the extended family. We argue that the ubuntu community would
therefore extend to the clan, village, tribe, neighbourhood, city and thenation-state, all being different kinds of community.64 The constructionof community as including the nation-state – in this context an African
state – is congruent with the living-law65 nature of ubuntu as an African
customary law value. The nation-state construction of community becomes particularly pertinent in ascribing correlative duties that flow froma right to water.

_____________________

60 Himonga (n. 14) 176. Himonga identifies six interrelated attributes: community,
interdependence, dignity, solidarity, responsibility and ideal.
61 MEC for Education: KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) [53] perLanga CJ, pointing out that the importance of community is not unique to African thought, as community also cuts across Western philosophy.
62 Kwame Gyekye Tradition and Modernity: Philosophical Reflections on the African Experience (OUP, 1997) 43; Himonga (n. 14) 174.
63 Himonga (n. 14) 173.
64 Gyekye (n. 62) 43.
65 Characterising African customary law as ‘living law’ acknowledges its fluidity andadaptability to changing circumstances and that law emerges from the people.
Customary law also emphasises oral traditions as sources. As Himonga observes,‘this living customary law represents the unwritten practices observed, and vested
with binding authority, by the people whose customary law is under consideration’ (Chuma Himonga ‘The living customary law in African legal systems’ inJeanmarie Fenrich, Paolo Galizzi and Tracy E Higgins (eds) The Future of African Customary Law (CUP, 2011) 35). On living customary law, see also Bhe &Others v Khayelitsha Magistrate & Others 2005 (1) SA 580 (CC) 87; Manfred
Hinz Customary Law Ascertained Vol. 1 (Namibia Scientific Society, 2010).

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The value of ubuntu in the pursuit of the human right to water
Ubuntu communitarianism inevitably reveals tensions in the relationshipbetween the individual and the community or collective. In the context ofrights, this requires a reconciliation of the rights of the individual in
relation to those of the collective. There are generally two approaches tocommunity: radical and moderate.66 The radical view would require thatthe individual’s rights and interests be sacrificed on the altar of community. This approach to African communitarianism is embraced in theideological perspectives of Kwame Nkrumah and Julius Nyerere. The
individual can only say ‘I am, because we are; and since we are, therefore
I am’.67
In contrast, moderate communitarianism rejects the view that African
communitarianism represents the idea that the traditional African social
order was totally communal and blind to the ‘status and relevance ofindividual rights’.68 Gyekye, who cites the ideology of Senegal’s first president, Léopold Senghor, and proverbs from the Akan people of Ghana,argues that the status of individuality and community are relative in thesense that ‘no human society is absolutely individualistic, and that it is alla matter of emphasis or priority or basic concern with one or the other’.69
Gendered language notwithstanding, Steve Biko highlights the individualemphasis within the community by stating that ‘the corner-stone of[African] society is man himself – not just his welfare, not his material
well-being but just man with all his ramifications’.70
Moderate communitarianism would (arguably) assert the importance ofboth individual and collective rights. Where an irreconcilable tension
between the two exists, it would place a greater, but not exclusive, emphasis on communal rights and interests than on those of the individual.71 Moreover, radical communitarianism may counterintuitively
imply that African values should be apotheosised whenever a value_____________________

66 Gyekye (n. 62) 43.
67 John Mbiti African Religions and Philosophy (Heinemann, 1969) 108–110, citedin Himonga (n. 14) 175; Gyekye (n. 62) 37.
68 Himonga (n. 14) 175; Gyekye (n. 62) 38.
69 It is worth noting that President Léopold Senghor was a driving force behind theadoption of the African Charter on Human and Peoples’ Rights and set the communitarian parameters for economic, social and cultural rights when he requested
the drafting experts to ‘keep constantly in mind our values of civilisation and thereal needs of Africa’ (address to the Dakar Meeting of Experts Preparing the Draft
African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/X,
reprinted in Philip Kunig et al. (eds) Regional Protection of Human Rights byInternational Law: The Emerging African Systems (Nomos Verlagsgesellschaft,1985) 121).
70 Steve Biko I Write What I Like (UCP, 1978) 46.
71 Himonga (n. 14) 176.

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conflict arises. The prioritisation of collective rights over individual ones
may also result in approaches that summarily exclude non-conforming
individuals and minority groups.72
Here, it is worth reflecting on the central ethos of the African Charter on
Human and Peoples’ Rights to reveal the primordiality of community in
Africa. The Charter is distinctive from other human rights instruments(both national and supranational) in that it incorporates all three traditional rights categories – civil-political, social-economic, and group/solidarity – and both individual and collective rights and duties, all of which
are rendered justiciable.73 This concept of rights is informed by African
communitarianism74 in which, as Gyekye puts it, ‘a person is only partly
constituted by the community’.75

3.2.4.2 Interdependence
The principle of interdependence can be seen in the various derivative
phrases of ubuntu. Take, for example, the isiZulu expression umuntu
ngumuntu ngabantu or ‘persons depend on persons to be persons’.76 This
expression implies a strong interdependence between human beings. Theinterdependence that is advanced by ubuntu is well captured by Justice
Sachs in Port Elizabeth Municipality v Various Occupiers:77
we are not islands unto ourselves. The spirit of ubuntu […] suffuses the whole[South African] constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is
nothing if not a structured, institutionalised and operational declaration in
our evolving new society of the need for human interdependence, respect andconcern.
_____________________

72 Oritsegbubemi Oyowe ‘An African conception of human rights? Comments on thechallenges of relativism’ (2014) 15 Human Rights Review 329 334.
73 Manisuli Ssenyonjo ‘The influence of the International Covenant on Economic,
Social and Cultural Rights in Africa’ (2017) 64 Netherlands International Law
Review 259 262; Chidi Anselm Odinkalu ‘Analysis of paralysis or paralysis byanalysis: Implementing economic, social, and cultural rights under the African
Charter on Human and Peoples’ Rights’ (2001) 23 Human Rights Quarterly 327.
74 Himonga (n. 14) 170–171; O Okere ‘The protection of human rights in Africa andthe African Charter on Human and Peoples’ Rights: Comparative analysis with
the European and American systems’ (1984) 6 Human Rights Quarterly 141 148;
R Howard ‘Evaluating human rights in Africa: Some problems of implicit comparisons’ (1984) 6 Human Rights Quarterly 160.
75 Gyekye (n. 62) 59.
76 Himonga (n. 14) 177. See also MEC for Education: KwaZulu-Natal v Pillay 2008
(1) SA 474 (CC) [53] per Langa CJ; S v Makwanyane & Another 1995 (3) SA 391(CC) [308].
77 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) [37].

74The value of ubuntu in the pursuit of the human right to waterAs such, ubuntu gives voice to our interconnectedness and common
humanity and the responsibility we owe one another that flows from ourconnection.78
Again, adopting a moderate form of communitarianism, we argue that
‘interdependence should be understood to recognise the status of theindividual as equal in moral terms to that of the community while emphasizing communal interests and rights’.79 The crux nevertheless is theshared responsibility.

3.2.4.3 Solidarity
Ubuntu’s solidarity requires that people should be able to count on thosearound them for support and are thus obligated to assist society’s needy
in augmenting social solidarity.80 It rejects selfish individual pursuits.
Solidarity thus sets down the mutual bonds of loyalty and protection thattie people together. This is consistent with an outlook that does not viewa person as an isolated, abstract individual but as ‘an integral member ofa group animated by a spirit of solidarity’.81 This outlook informs thestrong features of solidarity in African indigenous laws and African institutions.82 The solidarity principle comes out strongly in the water management regimes that have historically been and are presently inhabitedby people of African indigeneity.

3.2.4.4 Responsibility
As Himonga notes, responsibility in the ubuntu context refers to
a caring attitude or conduct that one feels one ought to adopt with respect tothe well-being of another person or other persons. Such responsibilities include the responsibility to help others in distress, the responsibility to show
concern for the needs and welfare of others, [and] the responsibility not toharm others.83_____________________

78 City of Johannesburg v Rand Properties (Pty) Ltd 2007 (1) SA 78 (W) [63].
79 Himonga (n. 14) 178.
80 Ibid. 177. See also R Makgato ‘Dignity and ubuntu: Epitome of South Africa’s
socio-economic transformation’ (2016) 5 Scientific Journal for Theory and Practice of Socio-economic Development 68.
81 Sandra Fredman Human Rights Transformed (2008) 18; Okere (n. 74) 148.
82 See art. 2(1)(a) of the Charter of the Organisation of African Unity of 1963;
art. 3(a) of the Constitutive Act of the African Union of 2000: ‘The objectives of
the Union shall be to (a) achieve greater unity and solidarity between the Africancountries and the peoples of Africa’.
83 Himonga (n. 14), citing M Munyaku and M Motlhabi ‘Ubuntu and its socio-moral
significance’ in MF Murove (ed.) African Ethics: An Anthology of Comparativeand Applied Ethics (University of KwaZulu-Natal Press, 2009) 71.

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Ubuntu responsibility thus asserts the existence of both rights and duties
that are deemed inalienable to all human beings.84 Himonga notes that‘the community life and the common good of shared relationships are thefoundation of moral responsibilities and obligations’.85 Moreover,Himonga points out that ‘responsibilities and obligations within the communitarian morality are not based on the idea of a social contract, on one
hand, and acknowledgment of the rights of others, on the other’.86 To
this end, ‘people do not carry out their responsibilities and obligations toothers because they are bound by a social contract to do so, or on thebasis of the corresponding rights of the latter. Instead, they bear and carryout their responsibilities and obligations on account of the “communitarian ethic and its imperatives”.’87

3.2.4.5 Dignity
The dignity principle of ubuntu requires the recognition of the worth ofeach individual in the community. This is captured in the notion of dignity that ubuntu advances requiring that human beings be ‘valued andrespected for their own sake’ without regard to their gender, ethnicity,
race, intellectual or mental capacity, and socio-economic status (an oftneglected category that is critical in the context of water rights).88
The dignity principle inevitably leads to challenges over the meaning of
dignity in philosophical theory and as a constitutional value. Dignity,
scholars observe, is a broad concept that is overstretched, devoid of content, and vague.89 It thus is of little surprise that leading ubuntu scholars
such as Himonga and Metz have materially differed on the substance ofdignity in the context of ubuntu.90 Nevertheless, ubuntu can facilitate
conceptions of dignity that are authentic, localised, decolonial and principled.
In our view, positive duties that arise out of rights can best be justified
through an understanding of ubuntu as dignity. Where persons needcertain socio-economic goods for their subsistence, they would retain apositive right claim,91 which gives rise to positive duties. Dignity thus
requires a concern for livelihood and socio-economic well-being, which is_____________________

84 Himonga (n. 14) 179.
85 Ibid.
86 Ibid.
87 Ibid.
88 Ibid.
89 Christopher McCrudden ‘Human dignity and judicial interpretation of humanrights’ (2008) 19 European Journal of International Law 655.
90 Himonga (n. 14) 182.
91 Ibid. 183.

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to be contrasted with dignity in the Western sense, and which has beenfound to emphasise negative liberty and individual personality issues
generally.92
Most African constitutions mention dignity as a human right, and jurisprudence in a number of jurisdictions has variously developed the substantive meaning of dignity. While we do not attempt to displace thesenational conceptions of dignity, we hold that considering dignity throughthe value of ubuntu allows us to adopt interpretative approaches that areanchored in concrete and localised values. Some scholars such as Cornell
have advocated an interpretation ‘that would ground the constitutional
grundnorm of dignity, and not dignity that calls for the recognition of
African humanist principles such as ubuntu’.93 However, it is not necessary to reconcile ubuntu strictly with dignity. The view taken by Mokgoro
and Woolman is compelling:94
No one has suggested that we need to square ubuntu with equality or freedom
or reduce it entirely to community rights. We might do well to consider allowing these values to occupy their own separate spaces – closely aligned andoverlapping, but with different roles to play when we apply our minds to constitutional conflicts … ubuntu and dignity do not map directly on to one
another, but they do rhyme.

3.3 A normative analysis of water as a human right
Water is recognised a basic human right, and its scarcity is of global concern. Water as a human right is reflected in, for example, the UN General
Assembly’s various resolutions95 on the subject, the UN’s Sustainable
Development Goal 6, and the African Union’s Agenda 2063. The centrality of water as a human right in Africa can be seen as emanating from its
status as a ‘multiplier right’: water is of overarching salience in the realisation of other rights as, without water, other rights cannot be fulfilled.
As the ESCR Committee frames it, water ‘clearly falls within the category_____________________

92 Sandra Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 9.
93 Drucilla Cornell Law and Revolution in South Africa: Ubuntu, Dignity, and theStruggle for Constitutional Transformation (FUP, 2014) 151.
94 Mokgoro and Woolman (n. 16) 407.
95 UNGA Res 68/157 ‘The human right to water and sanitation’ (18 December 2013)
A/RES/68/157 (adopted without a vote); UNGA Res 70/169 ‘The human right towater and sanitation’ (17 December 2015) A/RES/70/169 (adopted by consensus); HRC Resolution ‘The human right to safe drinking water and sanitation’
Resolution A/HRC/RES/15/9 (30 September 2010) (adopted without a vote);
HRC Resolution ‘The human right to safe drinking water and sanitation’ A/HRC/
RES/16/2 (24 March 2011) (adopted without a vote).

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of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’.96 The ESCR Committee goes on to say that water is necessary torealise many of the aims of the International Covenant on Economic,
Social and Cultural Rights such as adequate food, ensuring environmental hygiene through a right to health,97 securing livelihoods through theright to earn a living by work, and the enjoyment of certain cultural practices as part of the right to cultural life.98

3.3.1 Water as a human right in African national constitutions
While some African jurisdictions have expressly included the right to water
as a human right in their constitutions, other jurisdictions have relied on
the incorporation of water as an implied right. What follows is an overview of water as a human right in various domestic contexts. It is worth
noting that in African constitutions, the inclusion of water as an enforceable human right was pioneered by the 1996 South African Constitution
in section 27(1)(b). Subsequently, other African constitutions such as article 43(1)(d) of the 2010 Kenyan Constitution and section 77(a) of the2013 Zimbabwean Constitution have also incorporated the right.
In Mazibuko,99 five applicants who were residents of the township of
Phiri in Soweto sought to challenge the City of Johannesburg’s water
policy in the South African Constitutional Court. The principal issue for_____________________

96 United Nations CESCR, General Comment 15: ‘The right to water (arts 11 and 12of the International Covenant on Economic, Social and Cultural Rights)’ UN
Doc. E/C 12/2002/11 (20 January 2003) para. 3. In a philosophical discussion ofwater as part of the right to an adequate standard of living, Copp, commenting on
the phrase in the Universal Declaration, concludes: ‘Any credible analysis of theconcept of a basic need would imply … basic needs [such as] clean water’ (David
Copp ‘The right to an adequate standard of living: Justice, autonomy, and thebasic needs’ (1992) 9 Social Philosophy and Policy 231 252). Inga Winkler The
Human Right to Water: Significance, Legal Status and Implications for Water
Allocation (Hart Publishing, 2012) 62 also highlights the challenge of determining what forms part of the right to an adequate standard of living in art. 11(1) of
the ICESCR and advances Engbruch’s assumption that an adequate standard ofliving is met ‘when individuals live in an environment and under conditions thatallow them to participate in social life while maintaining their dignity and to realise their rights by their own means’.
97 See also ESCR Committee General Comment 14 on ‘The right to the highest attainable standard of health (article 12 of the International Covenant on Economic,
Social and Cultural Rights)’ (11 August 2000) E/C.12/2000/4.
98 General Comment 15 (n. 96) [6].
99 Mazibuko & Others v City of Johannesburg & Others 2010 (4) SA 1 (CC).

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our purposes was whether the supply of 6 kilolitres of free basic water
per month to every account holder in the City – regardless of household
size – was in conflict with section 27(1)(b) of the 1996 South African
Constitution. Section 27(1)(b) entrenches a human right to access sufficient water, while the state is enjoined by section 27(2) to take reasonable legislative and other measures, within its available resources, toachieve the progressive realisation of that right. Relevant here is the Constitutional Court’s approach in adjudicating the water policy of the City
in relation to the minimum core concept as a proper interpretation of therelationship between section 27(1) and 27(2) of the South African Constitution.100 In Mazibuko the minimum core issue101 arose as the applicants
had invited the Court to determine the content of their right to water
under section 27(1)(b) by quantifying the amount of water sufficient for adignified life, which the applicants had argued was 50 litres per person
per day.102
Botswana offers a unique perspective as the 1966 Botswana Constitution
does not explicitly include socio-economic rights such as water.103 The
courts in Botswana have, however, upheld a right to water derived fromthe right not to be subjected to cruel, inhuman and degrading treatment
in section 7 of Botswana’s Constitution. In Sesana104 the High Court of
Botswana was faced with an application for an order declaring that thetermination by the government of Botswana of the provision of certain
basic and essential services to the Basarwa tribe of the San people in theCentral Kalahari Game Reserve (CKGR) was on the legitimate-expectation
doctrine unlawful and unconstitutional. The government had relocatedthe community to new settlements and informed those who refused torelocate that the provision of services would be terminated at the oldsettlements within six months. The basic and essential services thatformed the crux of the request for the order were, for our purposes, thedaily provision of drinking water and the maintenance of the supply ofborehole water. Relying on the administrative-law principles of legitimate
expectation, Dibotelo J, writing for the majority of the High Court, heldthat the termination of services by Botswana’s government was neither_____________________

100 Ibid. [44].
101 The idea that every right gives rise to a minimum obligation that a state must
realise. See Ndeunyema (2021) (n. 12) 227.
102 Mazibuko & Others v City of Johannesburg & Others 2010 (4) SA 1 (CC) [50].
103 For a comprehensive analysis of socio-economic rights in Botswana, see Bonolo
Ramadi Dinokopila ‘The justiciability of socio-economic rights in Botswana’(2013) 57 Journal of African Law 108.
104 Sesana & Others v Attorney-General [2006] 2 BLR 633 (HC) (Botswana High
Court).

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unlawful nor unconstitutional and that the government was therefore
under no obligation to restore the provision of the services.105
The issues in Sesana arose in Mosetlhanyane,106 this time with specificreference to the right to water, before the Appeal Court of Botswana. The
facts are similar to those of Sesana, which presented, in the Court’s own
words, a ‘harrowing story of human suffering and despair caused by ashortage of water in the harsh climatic conditions of the Kalahari Desert
where the appellants and their Basarwa community live’.107 The Basarwa
community was relocated to new settlements in line with the government’s then new policy of wildlife conservation areas without humansettlements. During the relocations, a pump engine and water tank that
had been installed by the government for use at a particular borehole
were dismantled and removed. It was turned into ‘a white elephant whilst
the Basarwa communities in the area continue to suffer on a daily basis
from lack of water’.108 The appellants had sought a court order permitting them to use the existing borehole that the Botswana government had
sealed or an alternative borehole within the CKGR, all at their own, notthe government’s, expense.109 Applying a derivative-right approach, theCourt found that the Botswana government’s actions violated the right of
the appellants not to be subjected to cruel, inhuman, and degrading treatment under section 7 of the Botswana Constitution.110
Read in the context of limited socio-economic rights claims in Botswana,
Mosetlhanyane is commendable in that the Court compelled the Botswana
government to allow the appellants to have access to water as a right.
The decision has been celebrated as a ‘victory for the […] judicial enforcement of socio-economic rights in Botswana within a legal framework that does not adequately provide for the protection of such rights’.111_____________________

105 Ibid. 723.
106 Mosetlhanyane & Another v Attorney-General [2011] 1 BLR 152 (CA) (Botswana
Court of Appeal).
107 Ibid. 154.
108 Ibid. 155. The borehole was sunk in 1986 by a private mining company. Whenthe company no longer needed the borehole, it was agreed that it would be used
to provide water for the residents of the CKGR, to which use the Botswana government did not object. For over a decade the Ghanzi District Council maintained the engine of the borehole pump. It provided fuel for the pump and regularly took water from the borehole to the Basarwa communities in other parts of
the CKGR.
109 Mosetlhanyane & Another v Attorney-General [2011] 1 BLR 152 (CA) (Botswana
Court of Appeal) 155–158.
110 Ibid. 159–160.
111 Bonolo Ramadi Dinokopila ‘The right to water in Botswana: A review of the
Matsipane Mosetlhanyane case’ (2011) 11 African Human Rights Law Journal
282.

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An analysis suggests that the appellants were cautious, and strategic, inframing their claim as concerning a negative right and obligation (thatthe government allow them to extract water from boreholes for domesticuse) rather than as concerning a positive duty (that the government
provide them with boreholes, which would include the care and maintenance thereof). Even so the Court determined the issue as being a negative obligation upon the Botswana government not to interfere with theappellants’ right to water instead of as the positive obligation to provide
water and protect citizens from inhuman conditions.
The plight of the communities living in the CKGR would be a classic caseof people who cannot themselves provide for their essential services andneeds, which places an arguably stronger set of positive obligations upon
the government to provide water. This is the challenge with the judgment:
it avoids the problematic and counterintuitive conclusion that a government would be prohibited from inflicting suffering through deprivationof self-financed access to water but not have to take the initiative to prevent suffering from a lack of water through positive action.112

3.3.2 Water as an express human right under international law
Various international agreements recognise expressly the right to water.
These include the Convention on the Rights of the Child113 (CRC), theConvention on the Rights of Persons with Disabilities114 (CRPD), Convention of the Elimination of All Forms of Discrimination against
Women115 (CEDAW), and the Geneva Conventions. Regional treaties include the African Charter on the Rights and Welfare of the Child116 (African Children’s Charter) and the Protocol to the African Charter on Humanand Peoples’ Rights on the Rights of Women in Africa117 (African Women’s
Protocol).
Article 24(1) of the CRC enjoins state parties to recognise the child’s rightto enjoy the highest attainable standard of health and facilities for thetreatment of illness and rehabilitation of health, requiring state parties to‘strive to ensure that no child is deprived of his or her right of access tosuch health care services’. Article 24(2) proceeds to list the appropriate_____________________

112 Kristen Snell ‘Can water be a human right?’ (2014) 19 Appeal 131.
113 1577 UNTS 3 (opened for signature 20 November 1989; entered into force 2 September 1990).
114 2515 UNTS 3 (opened for signature 13 December 2006; entered into force 3 May
2008).
115 1249 UNTS 13 (opened for signature 18 December 1979; entered into force 3 September 1981).
116 CAB/LEG/24.9/49 (1990) (adopted 11 July 1990).
117 Adopted 11 July 2003.

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measures that state parties ‘shall pursue’ for the full implementation ofarticle 24(1). Among the measures listed is, ‘[t]o combat disease and malnutrition, including within the framework of primary health care through,inter alia, the application of readily available technology and through theprovision of adequate nutritious foods and clean drinking-water’.118
While article 24(2) explicitly refers to clean drinking water as among theappropriate measures that states are to take, it does so only in relation to
the child’s right to the enjoyment of health.119 Given the scope of CRC,
the right to water is claimable only to the extent that it relates to a child –a human being below the age of 18 years.120
While it is obvious that water is indispensable to the basic health of achild (or any person), water is also important for non-health-related
reasons. Arguably, a right to water is obligatory under the CRC only in so
far as water is the nexus to realise the health of the child. This is a proposition that finds the interpretative support of the CRC Committee, which
points to the essentiality to life and other human rights of water and theprevention of water-related diseases.121 Those scholars who have analysed
the CRC’s travaux préparatoires affirm this interpretation by pointing
out that it was India that had proposed the introduction of the expression ‘clean drinking water’ during the revision of the draft of what later
became article 24. This expression was included in recognition of theimportance of providing clean drinking water to avoid the risk of serious
disease and even the death of children.122
A similar approach to that adopted by the CRC in recognising water as
crucial to health finds regional expression in article 14(2)(c) of the African Children’s Charter.123 The Children’s Charter adopts language and astructure similar to the CRC’s, although it refers to safe drinking water as_____________________

118 Emphasis added.
119 CRC art. 24(1). The child’s right to water can also be inferred from the child’s
right to an adequate standard of living in CRC art. 27.
120 CRC art. 1.
121 UN Committee on the Rights of the Child, General Comment 15 (2013) on theright of the child to the enjoyment of the highest attainable standard of health(art. 24) (17 April 2013) CRC/C/GC/15 [48].
122 Jimena Murillo Chávarro The Human Right to Water: A Legal Comparative
Perspective at the International, Regional and Domestic Level (Intersentia,
2015) 59; Sharon Detrick A Commentary on the United Nations Convention on
the Rights of the Child (Brill, 1992) 353.
123 African Children’s Charter art. 14: ‘(1) Every child shall have the right to enjoy
the best attainable state of physical, mental and spiritual health. (2) States Parties to the present Charter shall undertake to pursue the full implementation ofthis right and in particular shall take measures […] (c) to ensure the provision ofadequate nutrition and safe drinking water […]’ (emphasis added).

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opposed to the CRC’s clean drinking water. The African Children’s Charter applies to children under 18 years of age.
Treaties addressing women’s rights also expressly affirm the existence ofthe right to water. CEDAW provides for a right to water in the specificcircumstances of rural women’s right to participate in and benefit fromrural development.124 Article 14(1) and (2) of CEDAW addresses theunique challenges that rural women – who constitute a quarter of theworld’s population125 – face in the context of the need for the economic
survival of their families and the non-monetised work that they perform.
CEDAW requires state parties to take appropriate measures that include
ensuring the elimination of discrimination against rural women throughrights that include the right to enjoy ‘adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply,transport and communications’.126 Article 14 thus ‘engenders’ the right towater as an intersectionality127 concern by coupling gender with socialeconomic class, given the article’s specific application to women who arerurally located.128
Rural women are explicitly protected under article 14 because they fareworse than rural men, and urban women and men on every socioeconomic indicator.129 Article 14 seeks to ensure that rural women benefit directly from social security programmes and have adequate living
conditions including water supply.130 This is particularly pertinent in_____________________

124 CEDAW Committee ‘General Recommendation 34 on rural women’ (2016)
CEDAW/C/GC/34 [35].
125 Ibid. [3].
126 CEDAW art. 14(2)(h) (emphasis added).
127 On intersectionality, see Kimberley Crenshaw ‘Demarginalizing the intersectionof race and sex: A black feminist critique of anti-discrimination doctrine, feminist theory and antiracist politics’ (1989) University of Chicago Legal Forum
139; Sandra Fredman ‘Engendering socio-economic rights’ in Anne Hellum andHenriette Sinding Aasen (eds) Women’s Human Rights: CEDAW in International, Regional and National Law (CUP, 2013) 218.
128 For an intersectional perspective, anchored in southern and eastern African casestudies, on a woman’s right to water, discussing ‘intersecting and overlapping
marginalizations on the basis of gender, race, ethnicity, political exclusion, andsocial economic class’, see Anne Hellum et al. (eds) Water is Life: Women’s
Human Rights in National and Local Water Government in Southern and Eastern Africa (Weaver Press, 2015).
129 CEDAW Committee (n. 124) [5].
130 Meghan Campbell Women, Poverty, Equality: The Role of CEDAW (Bloomsbury
Publishing, 2017). The CEDAW Committee (n. 124) [81] states: ‘Rural women’s
and girls’ rights to water and sanitation are not only essential rights in themselves, but also are key to the realization of a wide range of other rights, including health, food, education and participation’.

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sub-Saharan Africa where less than ten years ago 40 billion hours werespent collecting water every year, with women bearing two-thirds of thisburden.131 A ‘holistic approach’ to article 14 has also been advanced132
and is reflected in the CEDAW Committee’s General Recommendation
34, which asserts that ‘[r]ural women’s and girls’ rights to water andsanitation are not only essential rights in themselves, but also are key tothe realization of a wide range of other rights, including health, food,education and participation’.133
Similarly, the African Women’s Protocol recognises the rights of African
women to food security, and imposes a duty upon state parties to ensurethat women have the right to nutritious and adequate food. One of thelisted measures that the state is to take is to provide women with accessto clean drinking water per article 15(a). Like CEDAW, the African
Women’s Protocol’s scope of application is limited to (African) womenand girls.134
The CRPD expressly provides for the right to water. Through article 28(2)of CRPD, state parties recognise the rights of persons with disabilities tosocial protection. Article 28(2) has been interpreted as including the rightof such persons to clean water services, as affirmed by the UN Committee
on the Rights of Persons with Disabilities.135 The scope of application for
CRPD is also limited to the protected group of persons with disabilities.
Given that the guns of conflict are yet to fall silent on the African continent, it is worth assessing the water protections that exist during anarmed conflict. International humanitarian law is the body of international law that applies during international or non-international armed_____________________

131 UNICEF ‘Water, sanitation and hygiene’ <http://www.unicef.org/media/
media_45481.html> (accessed 19 July 2018). See also UN Economic and Social
Council ‘Economic, social and cultural rights: Relationship between the enjoyment of economic, social, and cultural rights and the promotion of the realizationof the right to drinking water supply and sanitation’, Final report of the Special
Rapporteur, El Hadji Guissé, [18]–[19] (14 July 2004) UN Doc. E/CN.4/Sub.2/
2004/20, <https://www.cetim.ch/legacy/en/documents/rap-2004-20-ang.pdf>(accessed 24 September 2023).
132 Anne Hellum ‘Engendering the right to water’ in Malcolm Langford and Anna
Russell (eds) The Human Right to Water: Theory, Practice and Prospects (CUP,
2017) 316–317.
133 CEDAW Committee (n. 124) [18].
134 African Women’s Protocol art. 1.
135 UN Committee on the Rights of Persons with Disabilities ‘Guidelines on treatyspecific document to be submitted by states parties under article 35(1) of theConvention on the Rights of Persons with Disabilities’, 18 November 2009,
CRPD/C/2/3, 16. The Committee was established under art. 34 of CRPD withthe purpose of monitoring the implementation of CRPD.

84

The value of ubuntu in the pursuit of the human right to water
conflicts.136 While a right to water can be impacted upon at the level ofboth jus ad bellum (water as a source of armed conflict and water-related
conflict situations) and jus in bello (the law on the provision of water
during armed conflicts), it is through the latter that international humanitarian law offers potential as a source of water-related rights and obligations upon states. In this regard, the Third137 and Fourth138 Geneva
Conventions, which arguably also reflect customary international humanitarian law by and large,139 contain provisions that protect access to waterin armed-conflict situations. These protections extend to persons such as
prisoners of war, internees and civilians, thereby creating water-related
rights and obligations that bind parties participating in hostilities.140
Water as an international humanitarian law concern has been consideredby various scholars.141_____________________

136 Dapo Akande ‘Classification of conflicts: Relevant legal concepts’ in E Wilmshurst(ed.) International Law and the Classification of Conflicts (2012); Dieter Fleck‘The law of non-international armed conflicts’ in Dieter Fleck (ed.) The Handbookof International Humanitarian Law (OUP, 2013); C Byron ‘Armed conflicts:
International or non-international?’ (2001) 6 Journal of Conflict and Security
Law 63.
137 Geneva Convention (No. III) ‘Relative to the treatment of prisoners of war’ 75
UNTS 135 (12 August 1949) (entered into force 21 October 1950).
138 Geneva Convention (No. IV) ‘Relative to the protection of civilian persons intime of war’ 75 UNTS 287 (12 August 1949) (entered into force 21 October 1950).
See also the analysis in L Boisson de Chazournes Fresh Water in International
Law (OUP, 2013) 169–173.
139 International Committee of the Red Cross ‘Customary humanitarian law:
Questions and answers’, <https://www.icrc.org/en/doc/resources/documents/
misc/customary-law-q-and-a-150805.htm#a3> (accessed 21 September 2023).
140 Arts 20, 26, 29 and 46 of Geneva Convention III guarantee sufficient water for
drinking purposes and other human needs; arts 85, 89 and 127 of Geneva Convention IV mention water and protects civilian persons in times of war; art. 54 of
the First Additional Protocol of 1977 (Protocol [I] Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3) prohibits the attack on anddestruction, removal or rendering useless of objects indispensable to the survivalof the civilian population, including drinking water installations and supplies
and irrigation works, ‘for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party’. Cf arts 5 and 14 of
the Second Additional Protocol (Protocol [II] Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts, 8 June 1977, 1125 UNTS 609).
141 For scholarship on an international humanitarian law right to water, see Inga
Winkler (n. 96) 62–64; Mara Tigino Water During and After Armed Conflicts(Brill, 2016); Amy Hardberger ‘Whose job is it anyway? Governmental obligations
created by the human right to water’ (2006) 41 Texas International Law Journal[continued on next page]85

Ubuntu in the Age of Human Rights

3.3.3 Water as an implied human right under international law
Three key treaties support the legal basis for an implied right to water:
the ICESCR,142 the ICCPR143 and the African Charter.144

3.3.3.1 Implying water under the ICESCR
Support for a right to water under the ICESCR finds textual anchorage in
two provisions: articles 11(1) and 12. Article 11(1) of the ICESCR reads:
The States Parties to the present Covenant recognize the right of everyone toan adequate standard of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realizationof this right, recognizing to this effect the essential importance of international
co-operation based on free consent.145

While article 11(1) does not explicitly refer to water, it has been interpreted
as ‘including’ a right to water as part of a right to an adequate standard ofliving for individuals and their families.146 The term ‘including’ is to beinterpreted as implying that rights in the article are not a numerus
clausus and reflect the legal drafting tradition that is frequently adopted
by domestic and international law-making organs. The interpretative inclusion of a right to water in article 11(1) is anchored in a teleologicalapproach to interpretation as the primary rule of treaty interpretation
under article 31(1) of the Vienna Convention on the Law of Treaties.147_____________________

533 549–568. For a comprehensive analysis of four basic water prohibitions
relating to international humanitarian law in so far as they relate to the use of
poison as a means of warfare, the destruction of enemy property, attacks on
objects indispensable to the survival of the civilian population, and attacks on
installations containing dangerous forces, see Ameur Zemmali ‘The protection ofwater in times of armed conflicts’ (1995) 308 International Review of the Red
Cross 550.
142 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3(adopted 16 December 1966; entered into force 3 January 1976).
143 International Covenant on Civil and Political Rights 999 UNTS 171 (adopted
16 December 1966; entered into force 23 March 1976).
144 African Charter on Human and Peoples’ Rights 1520 UNTS 217 (adopted 27 June
1981; entered into force 21 October 1986).
145 Emphasis added.
146 Although the right is gendered, given the use of ‘himself and his family’, it applies
to everyone, and no limitation upon the applicability of this right to individuals
or to female-headed households is implied (ESCR Committee ‘General Comment
12: The right to adequate food (art. 11)’ UN Doc. E/C.12/1999/5 (1999) para. 1.
147 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS Vol 1155,
art. 31(1) the reads: ‘A treaty shall be interpreted in good faith in accordance withthe ordinary meaning to be given to the terms of the treaty in their context and[continued on next page]86

The value of ubuntu in the pursuit of the human right to water
Furthermore, the phrase ‘adequate/acceptable standard of living’ is alegal formulation seen in article 25(1) of the Universal Declaration of
Human Rights (Universal Declaration).148 The Universal Declaration omits
an explicit reference to water.
The interpretation of article 11(1) to include a right to water has been put
forward by the ESCR Committee149 in its 2002 General Comment 15.150
General Comment 15 sets out the legal bases of a right to water, its normative content, the state’s obligations151 and corollary violations thereof,152 the right’s implementation at national level153 and the obligations of
non-state actors.154 Notably, General Comment 15 extends only to waterfor personal and domestic use and excludes considerations borne out ofcommercialisation or transboundary concerns around water.155
Four principal justifications are relied upon by the ESCR Committee in
asserting the legal basis of a right to water. The first is rooted in the original intent of the ICESCR drafters.156 The second justification is water as_____________________

in the light of its object and purpose’. See also Takele Bulto ‘The emergence ofthe human right to water in international human rights law: Invention or discovery?’ (2011) 12 Melbourne Journal of International Law 298.
148 Universal Declaration of Human Rights UNGA Res 217 A(III) (adopted 10 December 1948).
149 The Committee is tasked with monitoring the ICESCR’s implementation by stateparties and with developing general interpretations through General Comments.
See <http://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx> (accessed
21 September 2023).
150 See General Comment 15 (n. 96) [1]. The ESCR Committee’s General Comment 4
also specifies a right to sustainable access to safe drinking water for all beneficiaries of the right to adequate housing but only mentions water without elaborating upon its legal source or normative content. General Comment 15 was thus
pioneering in offering a full exposition of the right to water under the ICESCR.
See ESCR Committee ‘General Comment 4: The right to adequate housing(Art. 11(1) of the Covenant)’ E/1992/23 (13 December 1991).
151 General Comment 15 (n. 96) [17]–[38].
152 Ibid. [10]–[16].
153 Ibid. [45]–[59].
154 Ibid. [60].
155 Ibid. [2]. On the commercialisation and privatisation of water, see C de
Albuquerque and I Winkler ‘Neither friend nor foe: Why the commercializationof water and sanitation services is not the main issue for the realization ofhuman rights’ (2010) 17 Brown Journal of World Affairs 167; M Langford ‘Privatisation and the right to water’ in Langford and Russell (n. 132) 463; A Lang
‘Privatisation and regulatory autonomy: The right to water and international
economic law’ in Langford and Russell (n. 132) 531.
156 General Comment 15 (n. 96) [3].

87Ubuntu in the Age of Human Rights
a multiplier right,157 as water is necessary to realise other socio-economic
rights such as adequate food, ensuring environmental hygiene through aright to health, securing livelihoods through a right to earn a living bywork, and to enjoy certain cultural practices as part of the right to cultural
life.158 The third justification relates to water as a derivative right, derived
from the rights to life, dignity and health.159 The fourth justification isrooted in the right to health in article 12 of the ICESCR from which the
ESCR Committee argued that the right to water can be derived,160 aselaborately advanced in the Committee’s General Comment 14.161 The
ESCR Committee states that the article 12(1) right to health is ‘an inclusive right extending not only to timely and appropriate health care but
also to the underlying determinants of health, such as access to safe andpotable water’.162 The Committee also interpreted adequate supply of safeand potable water163 as being covered by article 12(2)(b) of the ICESCR,
which outlined the steps to be taken by state parties to achieve the full
realisation of the right to health.164

3.3.3.2 Implying water under the ICCPRThe ICCPR also supports a right to water through the article 6(1) guarantee of the right to life: ‘Every human being has the inherent right to life.
_____________________

157 Ibid. In a philosophical discussion of water as part of the right to an adequate
standard of living, Copp, commenting on the phrase ‘adequate standard of living’in the Universal Declaration, concludes: ‘Any credible analysis of the concept ofa basic need would imply … basic needs [such as] clean water’ (David Copp ‘The
right to an adequate standard of living: Justice, autonomy, and the basic needs’(1992) 9 Social Philosophy and Policy 231 252). Winkler also highlights the challenge of determining what forms part of the right to an adequate standard ofliving in art. 11(1) of the ICESCR and advances Engbruch’s assumption that an
adequate standard of living is met ‘when individuals live in an environment andunder conditions that allow them to participate in social life while maintaining
their dignity and to realise their rights by their own means’ (Winkler (n. 96) 62).
158 General Comment 15 (n. 96) [6]. See also ESCR Committee General Comment 14(n. 97).
159 See Chávarro (n. 122) 48; E Bluemel ‘The implications of formulating a humanright to water’ (2004) 3 Ecology Law Quarterly 970.
160 On the distinction between an implied right and a derivative right, see Pierre
Thielbörger The Right(s) to Water: The Multi-Level Governance of a Unique
Human Right (Springer, 2014) 228.
161 The Committee also touches on the right to water from the perspective of theright to health in General Comment 15 (n. 96) [3], [8], [11]–[13], [44].
162 General Comment 14 (n. 97) [11].
163 Potable water is water ‘fit or suitable for drinking’ (Oxford English Dictionary,2017).
164 General Comment 14 (n. 97) [15].

88The value of ubuntu in the pursuit of the human right to waterThis right shall be protected by law. No one shall be arbitrarily deprivedof his life.’ ‘Life’ in article 6(1) can be understood in two senses. The firstis in a strict and narrow sense that would impose exclusively negative
obligations of restraint or non-interference upon the state – that is, notto deprive a person of his or her life. The second is in a broad sense thatwould, in addition to imposing negative obligations the state, also obligate it to take positive steps to safeguard life.
A textual argument that narrowly constructs ‘life’ in article 6(1) as imposing only a negative duty of restraint on the state has been disputed. The
HRC in 1982 adopted General Comment 6 on the Right to Life.165 The
HRC lamented the narrow and restrictive interpretation of article 6166 toeschew a vacuous interpretation.167 A ‘modern and proper’ constructionof ‘life’ should not only protect against any arbitrary deprivation of life
but also place states under a duty to ‘pursue policies which are designed
to ensure access to the means of survival for all individuals and all
peoples’.168 While General Comment 6 does not specify water, it statesthat the protection of the right to life ‘requires that States adopt positive
measures’.169 The argument for water’s inclusion is relatively elementary
yet potent in its forcefulness: water is a non-substitutable resource that isessential at the most basic level to ensure the survival and sustenance ofhuman life.
More recently, in its 2018 General Comment 36 on the Right to Life, the
HRC has embraced a wider construction of life and expressly included
access to water.170 General Comment 36 replaced General Comment 6.171
This construction avoids an interpretative peril that is aptly laid bare by
the United Nations Development Programme (UNDP) in stating that lack_____________________

165 HRC General Comment 6: ‘Article 6 (Right to life)’ (30 April 1982).
166 Ibid. para. 5.
167 Amanda Cahill ‘“The human right to water – A right of unique status”: The legal
status and normative content of the right to water’ (2005) 9 International Journal of Human Rights 397.
168 Antônio Trindade ‘The parallel evolutions of international human rights protections and of environmental protection and the absence of restrictions on theexercise of recognized human rights’ Revista IIDH 13 (1991) 35 51. The HRC
stated that the ICCPR ‘should be interpreted as a living instrument and the rights
protected under it should be applied in context and in the light of present-day
conditions’ (Judge v Canada Communication 829/1988, HRC, UN Doc. CCPR/
C/78/829/1998 (2003) [10.3]).
169 General Comment 6 (n. 165) [5].
170 HRC ‘General Comment 36 (2018) on article 6 of ICCPR, on the right to life’
CCPR/C/GC/36 (30 October 2018) [26].
171 Ibid. [1].

89Ubuntu in the Age of Human Rightsof access to water ‘is a polite euphemism for a form of deprivation thatthreatens life, destroys opportunity and undermines human dignity’.172

3.3.3.3 Implying water under the African Charter
The African Charter supports an implied right to water. Unlike otherregional instruments such as the African Women’s Protocol and the African Children’s Charter discussed earlier, the African Charter, by virtue ofarticle 2, applies to all individuals without limitation ratione personae.173
Pertinently, the African Charter has been widely celebrated as the pioneering international human rights law instrument protecting and rendering justiciable all three ‘generations’ of human rights – civil-political,
social-economic and group (solidarity or peoples’) rights.174
Nevertheless, the African Charter does not explicitly mention a right towater. However, the right has been developed in the jurisprudence of theAfrican Commission on Human and Peoples’ Rights. The African Commission is a quasi-judicial body with a mandate to determine standards
and formulate principles and rules aimed at solving legal problems relating
to African Charter rights and freedoms.175 As will be seen below, the African Commission’s decisions evince an ‘innovative’176 purposive approachin the African Charter to the right to life,177 to health178 and to a generally_____________________

172 UNDP ‘Human Development Report 2006 – Beyond scarcity: Power, poverty
and the global water crisis’ (UNDP, 2006) 5.
173 African Charter art. 2: ‘Every individual shall be entitled to the enjoyment of therights and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fortune, birth or any
status.’174 See Manisuli Ssenyonjo (ed.) The African Regional Human Rights System: 30
Years after the African Charter on Human and Peoples’ Rights (Martinus Nijhoff
Publishers, 2012).
175 See generally Rachel Murray The African Commission on Human and Peoples’
Rights and International Law (Bloomsbury, 2000).
176 Takele Bulto ‘The human right to water in the corpus and jurisprudence of theAfrican human rights system’ (2011) 11 African Human Rights Law Journal 342.
177 African Charter art. 4: ‘Human beings are inviolable. Every human being shall beentitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.’
178 African Charter art. 16: ‘(1) Every individual shall have the right to enjoy the best
attainable state of physical and mental health. (2) States Parties to the present
Charter shall take the necessary measures to protect the health of their people
and to ensure that they receive medical attention when they are sick.’90

The value of ubuntu in the pursuit of the human right to watersatisfactory environment179 to accommodate water’s interpretative inclusion as a right.
The African Commission’s water jurisprudence covers both positive andnegative duties.180 In Legal Assistance Group v Zaire181 it was held thatthe failure of the Zairean government to provide basic services including
safe drinking water constituted a violation of the African Charter’s article
16 right to the best attainable state of physical and mental health. The
Commission interpreted article 16 as requiring that state parties ‘shouldtake the necessary measures to protect the health of their people’.182 The
Commission therefore found a violation based on Zaire’s failure to comply with its positive duties to provide water. Similarly, in Sudan Human
Rights Organisation v Sudan183 the African Commission found theSudanese government to be complicit in destroying wells and poisoning
water sources in the Darfur region. Citing Legal Assistance Group v
Zaire, the Commission also found a violation of article 16 of the African
Charter in the poisoning of water sources that exposed the victims toserious health risks, a violation of the negative obligation to refrain frominterfering with the right to water.184
In addition, while the SERAC 185 decision does not establish a right towater, it merits analysis for its approach to implicit rights. Here, the African Commission considered a communication alleging that the military
government of Nigeria’s oil production activities with various multinational corporations violated the Ogoni people’s African Charter rights.
The Commission established an implied right to food, which was violated
through a breach of articles 4 (life), 16 (health) and 22 (development).186_____________________

179 African Charter art. 24: ‘All peoples shall have the right to a general satisfactory
environment favourable to their development’.
180 See Manisuli Ssenyonjo ‘The protection of economic, social and cultural rights
under the African Charter’ in D Chirwa and L Chenwi (eds) The Protection of
Economic, Social and Cultural Rights in Africa: International, Regional andNational Perspectives (CUP, 2016) 91.
181 Legal Assistance Group v Zaire [2000] AHRLR 74 (ACHPR 1995).
182 Ibid. [47].
183 Sudan Legal Assistance Organisation v Sudan [2000] AHRLR 297 (ACHPR
1999).
184 Ibid.
185 Social and Economic Rights Action Centre (SERAC) v Nigeria [2001] AHRLR
60 (ACHPR 2001).
186 The Commission determined that the government’s destruction of food sources,
along with its failure to prevent oil companies from doing so, amounted to abreach of a right to food, which right is ‘inseparably linked to human dignity’ andis implicit in the African Charter’s rights to life, health, and economic, social andcultural development (Social and Economic Rights Action Centre (SERAC) v
Nigeria [2001] AHRLR 60 (ACHPR 2001) [65]).

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Ubuntu in the Age of Human Rights
Although the complainant claimed a violation of the right to water throughthe contamination of water sources of the Ogoni population,187 the African Commission did not pronounce on this claim.188 Nevertheless, theCommission’s approach to the right to life here was expansive in that it
did not consider the deprivation of life in only the civil-rights sense. Instead, the Commission implicitly recognised the right to a certain qualityof life in holding that ‘the pollution and environmental degradation to alevel humanly unacceptable has made living in the Ogoni land a nightmare’.189 This rejection of the narrow interpretation of life is also seen in
the African Commission’s General Comment 3, which asserts a right to adignified life which includes social and economic dimensions.190 The
Nairobi Principles embrace a similar approach.191
However, the African Commission has not been consistent in asserting
the existence of a right to water. For example, the Commission’s General
Comment 3 mentions water only in so far as it pertains to the state’s article 4 positive obligations to persons held in custody. Likewise, in Institute for Human Rights and Development in Africa v Angola192 before
the African Commission, the complainants alleged, among other things,_____________________

187 Social and Economic Rights Action Centre (SERAC) v Nigeria [2001] AHRLR
60 (ACHPR 2001) [50].
188 See Bulto (n. 176) 345–346.
189 Social and Economic Rights Action Centre (SERAC) v Nigeria [2001] AHRLR
60 (ACHPR 2001) [67].
190 ‘General Comment No. 3 on the African Charter on Human and Peoples’ Rights:
The Right to Life (Article 4)’ [6], [43]. General Comment No. 3 was adopted during the 57th ordinary session of the African Commission on Human and Peoples’
Rights held from 4–18 November 2015 in Banjul, The Gambia.
191 ‘African Commission Principles and Guidelines on Social and Economic Rights
in the African Charter on Human and Peoples’ Rights’ (Nairobi Principles) [87]:‘While the African Charter does not directly protect the right to water and sanitation, it is implied in the protections of a number of rights, including but not,[sic] limited to the rights to life, dignity, work, food, health, economic, social andcultural development and to a satisfactory environment.’ The Nairobi Principles
were adopted at the 47th ordinary session, Banjul, The Gambia, 12 to 26 May
2010, formally launched at the Commission’s 50th ordinary session in Banjul,
The Gambia, from 24 October to 7 November 2011. For a drafting history of the
Nairobi Principles, see International Justice Resource Centre ‘Working Group on
Economic, Social and Cultural Rights’ <http://www.ijrcenter.org/regional/
african/working-group-on-economic-social-and-cultural-rights/>(accessed
21 September 2023). For a critique of the Nairobi Principles, see Dejo Olowu ‘A
critique of the African Commission’s draft principles and guidelines on economic, social and cultural rights in the African Charter’ (2010) 11 Economic andSocial Rights Review 7.
192 Institute for Human Rights and Development in Africa v Angola 2008 (AHRLR)
292/04 43.

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The value of ubuntu in the pursuit of the human right to water
the violation of detainees’ right to dignity under article 5 of the African
Charter as a result of the failure to provide adequate water for 500
detainees who had only two buckets of water between them for bathing.
However, the Commission did not address the alleged violation of theirright to water.193 No reasoning for this silence is apparent in the decision.
While a derivative approach is a plausible avenue for asserting a right towater, it also invites us to assess – or at least be aware of – the limitations in a lack of an autonomous existence of a human right to water
under the African Charter. Water rights cannot be claimed unless a ‘parent
right’ is jeopardised by a lack of an adequate quantity or quality of water.
Water’s subservience to other rights under the African Charter arguably
has the consequence of making water dependent on the ‘main’ right in theinterest of which the right to water is protected.194 Bulto laments that thislack of comprehensive legal protection of water in the African Charter, as
the main regional195 instrument, ‘creates a hierarchy within a hierarchy,
as it sits on the lowest rung of the already-marginalised socio-economic
rights’.196 It means that a right to water cannot be demanded per se andis thus susceptible to lying in the ‘shadow’ of other rights.197
In this context, what is unique about the African Charter and the African
human rights system, more broadly, is that the system is not selfcontained or insulated, given the explicit permissibility of interpretative
inspiration from external human rights systems.198 The African Commission has therefore had recourse to material from other sources suchas the ESCR Committee’s General Comments, including General Comment 15, as discussed earlier. While the Commission’s jurisprudence has
established a violation of predominately negative obligations and only a_____________________

193 Bulto (n. 176) 346. For a comparative perspective from the European Court of
Human Rights, where failure to provide water was held to be a violation of ECHR
art. 3, which prohibits cruel, inhumane and degrading treatment, see Riad andIdiab v Belgium ECHR (24 January 2008) App 29787/03 (French text), whereasylum seekers were held to have been detained without adequate water for consumption and hygiene; Tadevosyan v Armenia ECHR 2 (2 December 2008)
App 41698/04, where a detainee was not provided with adequate access to waterand sanitation.
194 Bulto (n. 176) 347.
195 The SADC Treaty can also be a potential source of law, but it does not explicitly
provide for a right to water and only refers to human rights as one of the principles of the member states (art. 4(c)). See G Matchaya et al. ‘Justiciability of theright to water in the SADC Region: A critical appraisal’ (2018) 7 Laws 18 25.
196 Bulto (n. 176) 342.
197 Ibid. 348.
198 African Charter art. 60 allows the Commission to draw inspiration from humanrights sources beyond the African Charter.

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Ubuntu in the Age of Human Rights
few positive obligations of state parties in relation to water rights asderived from various ‘parent’ rights, it has also failed to articulate thenormative content of such water rights.
It is worth emphasising the importance of regional systems generally andAfrica’s specifically, as being particularly salient in reflecting local values
that cannot effectively be reflected in the international system.
Hansungule has argued that the ‘preoccupation with universal values,
though important, can lead to a de-emphasis of certain peculiarities thatare nonetheless basic to some societies’, allowing for the opportunity torecall societal values for inclusion in the international system, in addition
to what can be borrowed from other systems.199 As Shelton states, regional
systems ‘have the necessary ability and flexibility to change as conditions
around them change, yet are applied in response to regionally-specificproblems; they achieve equilibrium between uniform enforcement of
global norms and regional diversity’.200

3.4 Invoking ubuntu to imply water
Given that ubuntu is the antithesis of human suffering and deprivation, it
can be deployed as a normative basis upon which an African constitutioncan ‘create dependable [and durable] socio-economic transformation
which safeguards human well-being’.201 Taken collectively, ubuntu’s principles of community, interdependence, solidarity and dignity affirm that
all human beings should have access to not only all the means necessary
for their survival but also those goods necessary for a dignified existence.
Such goods would include the right to water.
Ubuntu also helps us overcome the argument that water can be implied
from the right to life in African constitutions. A constitutional right to life
should be understood in not only the civil-rights sense in which the stateis prohibited from taking a life through capital punishment, the unjustified use of force, or other extra-judicial means. Ubuntu allows us to justify normatively a socio-economic dimension to life, in this case, water.
When a constitutional right to life is grounded in ubuntu, it is recognised_____________________

199 Michelo Hansungule ‘Protection of human rights under the Inter-Americansystem: An outsider’s reflection’ in Gudmudur Alfredsson and Jakob Möller (eds)
International Human Rights Monitoring Mechanisms: Essays in Honour ofJakob Th Möller (Brill, 2001) 679, 684.
200 D Shelton ‘The promise of regional human rights systems’ in Burns Weston andStephen Marks (eds) The Future of International Human Rights (Transnational
Press, 1999) 351.
201 Makgato (n. 80) 68.

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The value of ubuntu in the pursuit of the human right to water
that, without the necessities to sustain human survival, life would bemeaningless.
Furthermore, a right to life should not be understood as only the right ofa person to exist in the purely biological sense of breathing, etc. Rather, aright to life, in the context of ubuntu, requires all the necessaries of life,
which is understood through the prism of the dignity principle thatcompels us to value and respect individuals and their socio-economic
status.202 The principles of ubuntu, taken together, demand the recognition of the worth of an individual as a member of the community andthat the right to life be constructed to require a material concern for the
livelihood and socio-economic well-being of all members of society,which crucially includes their water needs.
In a water-scarce environment like Africa’s, it is particularly apposite toapply the communitarian principles that inform ubuntu. As argued, thiswould be a moderate form of communitarianism, one that does not
obscure the rights and interests of the individual to their personal waterneeds. Moderate communitarianism is also revealed by the solidarity
principle accruing from ubuntu. This construction of ubuntu allows theindividual-versus-community rights tensions that may arise to be carefully navigated by an understanding that, while individuals are communal in nature, they simultaneously retain individual free will and a visionof the life that they wish and choose to live. This construal would prioritise recognition of the intrinsic value of every individual constituting thecommunity.203 In line with Metz’s application of ubuntu to socialeconomic aspects, the principle of respecting the communal nature ofmany African societies would require that we take heed of ‘positive’
human rights to socio-economic assistance.204
International law is resourceful in overcoming the civil-political-versussocio-economic rights divide that treats the right to life as falling squarely
within the latter category. In this regard, the ICCPR is instructive, relying
upon the UN HRC’s General Comment 36 to advance a broad interpretation of ‘life’ in article 6 of the ICCPR to include socio-economic dimensions.

_____________________

202 Himonga (n. 14) 179.
203 David Bilchitz ‘What is a just distribution of resources?’ in David Bilchitz,
Thaddeus Metz and Oritsegbubemi Oyowe (eds) Jurisprudence in an African
Context (OUP, 2017) 131, 159.
204 Thaddeus Metz ‘Ubuntu as a moral theory and human rights in South Africa’(2011) 11 African Human Rights Law Journal 532 550.

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Ubuntu in the Age of Human Rights

3.5 Conclusion
This chapter has explored the concept of ubuntu in relation to water as ahuman right. Ubuntu, a philosophy deeply rooted in African culture,underscores the principles of community, interdependence, solidarity,
responsibility, and dignity. While ubuntu is not explicitly mentioned in
African constitutions, lawyers and judges can assert and ground it as animplicit constitutional value, enhancing the legitimacy of human rights
in the African context and particularly in ameliorating the water accessissues that too many Africans face.
This chapter also highlights the importance of imbuing human rights
with local, participative approaches such as ubuntu, as this enhances thelegitimacy of human rights principles. We advance ubuntu’s centrality as
an apposite value premise, given its wide acceptance and its alignment
with African indigenous justice systems. The South African Constitutional
Court’s decision in Makwanyane played a pivotal role in pioneering the
judicial explication of ubuntu as a legal concept, defining it as an ethos oflove, respect, and acceptance within a community.
Although ubuntu lacks precise meaning and its abstractness raises dilemmas, we argue that one can nonetheless identify and apply its principles to comprehend ubuntu legally. These principles are community,
interdependence, solidarity, responsibility, and dignity. Ubuntu’s potential consistency with the nature of constitutional values makes it a valuable concept for incorporation within jurisdictions in Africa and beyond.
Ubuntu promises to play a significant part in legal theory and judicial
practice. As jurisdictions worldwide continue to grapple with the difficulties of interpreting and applying human rights principles within theirunique cultural contexts, ubuntu offers a much-needed framework forunderstanding and implementing these principles. By emphasising community, interdependence, solidarity, responsibility, and dignity, ubuntu
approaches human rights holistically, in a manner that factors in thesocial, cultural, and historical realities of local societies. By grounding
constitutional interpretation in local values and traditions, ubuntu canbridge the gap between abstract principles and the lived experiences ofcommunities. In this fashion, it can foster a sense of ownership and participation among citizens, as they see their norms and cultures reflectedin the legal system.
Furthermore, ubuntu can contribute to a more inclusive and transformative approach to justice. In recognising the interconnectedness of
individuals and communities, ubuntu challenges the well-establishedadversarial model of justice and encourages a more collaborative andrestorative ethos. This can help develop alternative dispute resolution
mechanisms that prioritise reconciliation, healing, and community
restoration.
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The value of ubuntu in the pursuit of the human right to water
Finally, infusing ubuntu into legal theory and praxis requires that interpreters carefully balance cultural specificity and universal humanrights standards. While ubuntu puts forth a tried-and-tested perspective
rooted in African culture, interpreters should resist its invocation tojustify or perpetuate practices that trample upon fundamental humanrights. They must see to it that they construe and apply ubuntu in amanner that upholds the principles of equality, non-discrimination, andthe autonomy of individuals, notwithstanding ubuntu’s strong communitarian ethos. Such application calls for ongoing dialogue and engagement
between jurists, practitioners, judges, and communities to ensure thatubuntu is understood and implemented in a way that promotes justiceand human dignity for all.

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