Affirming a Culture of Values in the Human Rights Framework

by Jody Kollapen

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.

And virtually 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:

“All constitutions 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.

Yesterday, the 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 exist.

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 Rights Framework.

Do they speak to that framework in the value system? We think they do. And let’s examine that critically.

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 issues that

have come up from this discourse.

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 system.

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 place.

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?

They’re not 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 society.

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.

Rosalind English 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 going forward.

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.

This 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 permission.

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 communication technologies to serve the needs of organizations and social movements that aspire to progressive social change.

Posted  December 08, 2006