Culture of Values in the Human Rights Framework
If human rights
have come to assume such dominance in our society, why do we still witness
oppression and intolerance? Does this necessarily reflect the inadequate human
rights framework we have in place? Jody Kollapen writes that the main challenge
to the human rights framework is how society makes a connection between social
values and human rights.
There’s hardly a
discussion that is not characterised by the language of human rights. It was
central in the struggle for democracy in freeing our country, it was seen as a
struggle issue in the struggle for human rights. It is in the architecture of
our Constitution, the commitment for human rights.
anybody in society will not speak on any critical issue without using the
language of human rights. It plays a central role in policy making processes, in
legislation, in judicial pronouncements, so clearly on the face of it, it
occupies a dominant role. And former Chief Justice Ismail Mohammed spoke to the
human rights values in this context in the Makwanyane case5 and I’ll just quote
briefly. He said:
seem to articulate with differing degrees of intensity in each level; the shared
aspirations of a nation, the values which bind its people and which discipline
its government and international institutions, the basic premises upon which
judicial, legislative and executive power is to be wielded, the constitutional
limits and the conditions upon which that power is to be exercised, the national
ethos which defines and regulates that exercise, and the moral and ethical
direction which the nation has identified for its future.”
Now if human rights
have come to assume such dominance in our society then it must beg the question:
why are they not embraced as dominantly in our society as one must assume that
they play such a dominant role? The available evidence suggests that it is not
being embraced as widely as expected. We still witness intolerance and see
violence on a daily basis in our society.
National Religious Leader’s Forum couldn’t reach agreement on a statement when
they went to see the President with regard to the issue of HIV/AIDS. This
suggests that as much as we want to say that there’s a glue that binds this
nation, we must question what that glue is and indeed, how strong that glue is,
because very often we seem to be falling apart.
There are two
components of human rights, there’s the legal component. The legal component is
relatively easy; it defines the parameters of the right, what will happen if the
right is not observed.
But we assume that
there’s also a value content to that right. For thousands of years communities
have lived and identified who they are, have structured relationships in
relation to their community, their government, in relation to value systems,
shaped by culture, shaped by religion, shaped by their own experiences of those
communities, and those value systems have existed, and continue to
What you saw
happening in the last 50 years, perhaps more pronounced is the development quite
substantially over International Human Rights Framework, and there’s an
assumption that the value systems that have developed now speak to the Human
Do they speak to
that framework in the value system? We think they do. And let’s examine that
I have no doubt
that there are lots of similarities in the value systems that different
societies have developed. But there are also differences, and questions have
been asked about whether human rights are universal or whether they’re relative,
whether they’re Eurocentric. And we can answer those questions quite glibly by
saying, surely they’re not, but we need to examine quite critically some of the
have come up from
Let me present an
example of how the choice of value can determine the nature of the human rights
framework, and I’ll give two examples. In the area of justice, there are various
notions of justice and there are various values that shape how we see a justice
The Western notion
is by and large a retributive notion of justice. The African notion is by and
large a restorative restitutive notion of justice. Now depending on the choice
you make, will determine the kind of system you put in place, the kind of rules
and procedures, the kind of human rights guarantees that you put in
And thus we asked
ourselves the question: does the human rights framework then that governs the
justice system, the right to a fair trail is something we all agree to, but the
rules currently of the right to a fair trial by and large imitate the objectives
of an adversarial retributive system of justice?
I think it does. So
the question then is: If our value system is one of restorative justice, and one
that takes us away from the adversarial system, there’s an inconsistency with
the system it put in place. That’s one example.
The second example
which throws up this issue is around the issue of what you may call communalism
versus individualism. Now many people will tell me that the kind of societies
that existed in this geographical context and elsewhere, were characterised by
the notion of communalism, a notion of sharing of resources and sharing of
responsibility, the relationship of individuals to their communities, and the
sense of duty to that community, and vice versa.
If you take that
down to then how you construct your economic system, does your economic system
then reflect the value of communalism or the value of individualism? If it does
reflect the value of individualism then people are entitled to ask; does the
system then speak to our values?
rejecting the system but they’re asking the fundamental question; and therein
I’m hoping you can begin to see some of the fault lines between our values.
In the South
African context, we speak of the founding values of the Constitution, equality,
human dignity and the advancement of human rights, and we assume that we all
understand it in the same way. We assume that we interpret it in the same way
and that it’s manifested in the same way, and I’m not quite sure if that’s
always the case.
Take the Christian
Schools case, for instance, the Christian educators would say that the
infliction of corporal punishment for us is a matter of affirming the dignity of
the child because it informs respect, the structure of the family, etc. I don’t
agree with it, but they would argue that perspective.
Others would say,
to inflict a system of corporal punishment is a violation of the child’s
dignity. Now they may use the language of rights but they come from a different
value perspective, and I think that is what is emerging so often in our own
Referring to the
concept of Ubuntu, Chief Justice Pius argues that: “The concept is of some
relevance to the values we need to uphold. It is a culture, which places some
emphasis on communality and on the interdependence of the members of the
community. It recognises a person’s status as a human being entitled to
unconditional respect and dignity, value and acceptance from the members of the
community, if such person happens to be part of it.”
It also entails the
converse, however. The person has a corresponding duty to give the same respect,
dignity, value and acceptance to each member of that community. More
importantly, it regulates the exercise of rights by the emphasis it lays on
sharing and co-responsibility, and mutual enjoyment of rights by all.
So the sense again
of communality, of sharing and co-responsibility. Now if we proudly proclaim
Ubuntu as a foremost value of society, then we must ask the question: does that
value reflect itself in the policy processes, in the legal processes in the
jurisprudence that is being developed?
I’m not going to
answer that question now, but there is genuine concern whether in fact it does,
or whether it’s simply something that it sounds nice to say but hasn’t been
imbibed and hasn’t been ingrained into the processes.
has also raised relevant questions regarding the concept of Ubuntu. She asked,
cynically, whether it has suddenly become, and I quote: “A marketing device
designed to put an African imprimatur on a set of civil liberties forged largely
out of Western instruments.”
She further asks:
“Is Ubuntu then a genuinely useful jurisprudential tool or does it simply mean
all things to all men?”
I think we’ve come
to the point where we must recognise that we don’t necessarily share the same
value system and we must find the way in which we can put those differing
interpretations on the table, debate it, synthesise it, if we are serious in
And without a doubt
we speak of the human rights challenges that we need to escalate, but it’s clear
to us that you can’t escalate it and you can’t give it a sense of impetus and
momentum, unless we get this understanding of values right.
There’s also a real
danger, people, that in looking at the different values and in constructing a
society where we say we respect difference, and we create space for difference
and we celebrate difference, that we actually are not sincere about it, that
subconsciously we do it in a way that says, but we’ll celebrate difference, but
sooner or later they will become like us, because that’s what we actually want
them to be. And when I say “them” I don’t speak of women or black people or
whatever, I speak
of “the other”.
In conclusion I
think that the way in which we construct the human rights debate and the way in
which we have placed it at the central place in the transformation of our
country is critical that it cannot fail and it hasn’t failed. But I think it
faces some considerable challenges at the current time in terms of how we make
the connection between values and human rights, and we can’t make the connection
simply on the assumption that there’s an obvious connection.
Why do you ask
what’s the connection? It’s obvious, it speaks naturally. We must interrogate
whether that connection is as obvious, and what prevents it. And that requires
in a sense for each of us to look at our own values, to look at our own
individual transformation and to ask, how did that transformation relate to what
we want to see and achieve as a country.
paper was presented at a seminar organized by the South African Human
Rights Commission, April 2006. Jody Kollapen is with
the SA Human Rights Commission.
This essay is herein reprinted with the author's
This essay was
originally published by Pambazuka News. Pambazuka
News is the weekly electronic forum for social justice in Africa,
www.pambazuka.org (Pambazuka means arise
or awaken in Kiswahili) it is a tool for progressive social change in Africa.
Pambazuka News is produced by Fahamu, an organization that uses information and
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movements that aspire to progressive social change.
Posted December 08, 2006