Refreshing Historical Accounts of Human Rights in Africa

Lakshman Marasinghe (1984), in his examination of judicial confusion in post-junta Nigeria surrounding matters of human rights and family rights, presents an unusual and alternative account of the place of human rights in African history and cultures. He is determined to reenergize the study of social forces in pre-colonial Africa. Marasinghe holds that minority issues are universal concerns and self-determination a socio-political problem in all periods and cultures. He views the central issue as one of understanding the systems of law and custom peculiar to each African culture. This reformulation is significant because it suggests a connection between universalism and pre-colonial cultural heterogeneity. He lays out a plausible framework for examining pre-colonial and customary law through colonial and post-colonial lenses. His conclusion is to reinterpret “rights” as “powers,” which are exercised in all systems of law, Western or otherwise. This drives another nail into the coffin that previously held human rights to be solely Western in origin, expression, and tradition. In this historiographical essay, I explore the limitations to work in the mold of Marasinghe and unpack the complex set of issues presented by human rights in the non-Western historical context. My goal is not to provide a definition of human rights in Africa, but to challenge the argument that human rights and the deployment of rights concepts have no historical basis in the African continent, and to suggest a strategy for future research. For too long non-historians have dominated this sub-field of research. Historians of Africa, whose work focuses on change over time, have been reticent to engage in this debate on the grounds that empirical data are unavailable. Some feel that such debate is politically motivated, anachronistic, or open to misappropriation by political agitators. Marasinghe’s enlightening project suggests that there may, however, be ways to overcome such obstacles. In contrast to previous scholarship, I draw on Marasinghe’s research to redirect scholarly attention to the fluid legal subjectivity afforded Africans during the colonial period. This subjectivity I describe as “rights opportunism.” I then utilize this concept as a bridge to the contemporary present, and to a new line of inquiry in the historicity of cross-cultural universals in Africa.In this essay I offer two complementary explanations of the difficulty of approaching human rights in the African historical past. On a conceptual level, the scholarship about concepts of rights reveals itself to be reductivist and teleological. One view holds that “African” forms of rights can be uncovered in the pre-colonial past. In contrast, the opposing view insists that the discourse of rights is a Western imposition with little organic cogency in Africa, and the continuity of the discourse requires the continuing imposition of an outside force. Subordinate to this, and on a broadly ontological level, the impasse with respect to investigating rights discourse in the historical past is interpreted as a function of the complex historical relationship between Africa and the West. Two key forces are significant in this regard. First, a reification of the impact of colonial rule and European presence has disrupted any serious investigation of cultural forms and political relations during the pre-colonial period. Second, the very antithesis of an effective modern governmental human rights regime, the South African apartheid state, has long served to reinscribe view that human rights and the contemporary African milieu are incompatible.