Lakshman Marasinghe, in his examination of judicial confusion surrounding matters of human rights and family rights in post-junta Nigeria, presents an alternative to the dichotomous academic debate about 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 views the central issue as one of understanding the systems of law and custom peculiar to each African culture. He holds that minority issues are universal concerns and self-determination a problematic of all periods and cultures.  Marasinghe's reformulation is significant because it connects the theoretical implications of universalism to the heart of 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, to reinterpret "rights" as "powers" which are exercised in all systems of law, Western or otherwise, drives another nail into the coffin that previously held human rights to be solely Western in origin, expression and tradition.

 

In this presentation, I will 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 Eurocentric historical context. My goal is to challenge those who would argue that human rights 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 is unavailable.  They also feel that such debate is politically motivated, anachronistic, and open to misappropriation by political agitators. Marasinghe's enlightening project, however, suggests that there may 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, a subjectivity I loosely describe as "rights opportunism." I then use this as a bridge to the contemporary present, building upon this to suggest a new line of inquiry in the historicity of cross-cultural universals in Africa.

 

In this paper 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 strongly that "African" forms of rights can be uncovered in the pre-colonial past; while the opposing view insists that the discourse of rights is a Western imposition with little organic cogency in Africa, but an outside force that must continue to be imposed. 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 of significance in this regard: in the first instance, 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; and in the second instance, the very antithesis of an effective modern governmental human rights regime, the South African apartheid state, has long served to reinscribe the incompatibility of human rights in the contemporary African milieu.

 

Formulating methodologies that release African voices from the colonial confines of European archival sources is one of the more daunting tasks of the African historian. Earlier attempts at locating culturally specific ideas of human rights failed partly because of fundamental flaws in the methodologies employed in data collection. Replicating or emulating Marasinghe approach in the creation of culturally sensitive theoretical constructs capable of spawning a methodology, and subsequently data, that are intelligible as human rights overcomes this difficulty.

 

Alison Dundes Renteln has argued persuasively that the key component of ethical [read: cultural] relativism is enculturation, not tolerance, a reading that in turn permits moral criticism and validates the search for cross-cultural universals. By drawing on Renteln, African historians can reposition their analyses of customary law and colonial legal imposition.  There is intrinsic value in African historians' reconsidering "rights discourse" in historical context providing that an effective methodology for data collection an analysis is developed. Framed more generally, by disabusing ourselves of the "radical break" theory that has traditionally divided the historiography on human rights in Africa into categories of pre-colonial and colonial, as African historians we can turn our attention to hybrid forms of "rights discourse" in the African continent prior to and during the colonial period. In the following sections I explain the view of those romanticizing African notions of rights and those who see no place for rights in African societies, past or present. I then move on to consider how the debate has been reinvigorated by contemporary political changes. Finally, I advocate a new direction for research and suggest some concrete examples of this approach.