Operative Clashes and Nexuses: ‘Resilient’ vs. ‘Conventional’ Human Rights RP Vol. IX No. XXVIII, MMXVI

Operative Clashes and Nexuses:

‘Resilient’ vs. ‘Conventional’

Human Rights African Union Summit 2016, Addis Ababa, Ethiopia

Human Rights with a focus on the Rights of Women Political transition in Africa: Africa leadership Forum and Global Coalition for Africa Study – 1993

African Union Summit Public Lecture - CXL, MMXV

Costantinos Berhutesfa Costantinos, PhD Professor of Public Policy, School of Graduate Studies, College

of Business and Economics, AAU

Abstract

Almost three quarters of a century ago, the human community proclaimed a bold and revolu-tionary vision of the future. The Universal Declaration of Human Rights of 1948 asserted that every person on the planet has certain fundamental rights that every society should aspire to their realiza-tion equally, cannot be doubted. Notwithstanding The Declaration, the perils of algorithmic power reveal that states who routinely abuse human rights will have to uphold them to remain legitimate to their digital citizenry where they theoretically draw their power from. The caveat is any system of concepts that claim to be universal must contain critical elements in its fabric that are indubitably common to all humans.

Pundits have asked whether African laws that derive from colonial masters and notion of rights that stem from the Magna Carta and „democracies’ that treated blacks inhumanly as the Declaration came into force, do embrace the rights of all humans. Is it bound to be bigotry and obligated to fail because those societies whose conception of rights are not accommodated will take it as an imposition from other cultures? For instance, does the Declaration have African roots, if not; should Africa see it as as alien idea that is imposed from without? In addressing these questions, the article defines resilient rights as unique adaptive strategies of peoples that lead to self-empowered and sustainable liveli-hoods, which are critical for freedom from fear and freedom from want – one of the most basic human rights. It discusses the emergence of resilient rights inherent in community governance dynamics that have been relegated to the dignity of incipient archaism by vocal non-state human rights agencies and advocacy groups. Resilient rights ideology and agency relate to complexes of ideas, beliefs, goals and issues that can come into co-operative play or competitive contestation amidst the full range of significant participants and their activities for realising self-empowerment and hence self-contained rights.

Key words: resilient rights, human rights, international humanitarian law,

Change means movement. Movement means friction. Only in the frictionless vacuum of a non-existent hypothetical world can change

occur without that abrasive friction of conflicts Saul Alinsky

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1 | Operative Clash and Nexus - Human Rights vs. ‘Rights Resilience’

1. Introduction

Seventy years ago, the human community came up with a revolutionary vision of the future. De-cember 10, 1948 heralded a revolutionary ideal of human society. On this historic day, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. Under Arti-cles 1 and 2, this declaration boldly stated that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience. They should act towards one another in a spirit of goodwill. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, col-our, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Moreo-ver, no distinction shall be made based on the political, jurisdictional or international status of nations or territory to which a person belongs, whether it is independent, trust non-self-governing or under any limitation of sovereignty.

Therefore, that every society should aspire to their realisation equally cannot be doubted. How-ever, developing societies are almost in no position to facilitate their realisation, which are critical for freedom from fear (political and martial repression) and freedom from want (poverty and margin-alisation). It is equally clear that modern means and instruments of production that are the benefits of science and technology have become effective tools for the realisation of secure livelihoods, mak-ing it possible to be triumphant against poverty and all its attendant evils. Given this sad state of af-fairs, it becomes logical to expect that the affluent states that authored this noble Charter would make available to African societies their human right, science and technological tools to facilitate its realisation.

However, when one examines the effort to parachute human rights and democracy cossetted in clus-ter bombs to Libya, Syria, Iraq… ad infinitum, this expectation is largely naïve.

That hunger, malnutrition, poverty, disease and ignorance degrade human beings such that they become forced to resort to accept hand outs is obvious, which can only be realised only if there are humanitarians who can afford to give is equally evident. It must, however, be noted that human be-ings who resort to hand-outs do so by forfeiting their self-esteem, that is, their human egotism. However, if humans have self-respect for their rights, it cannot mean anything outside a societal context. The miasma of legalism that hangs over human rights by the technocratic elite over African societies is equally dysfunctional.

The legalism of the human rights framework makes it blind to the co-operation and sense of civic responsibil-ity that truly makes us human and accounts for our uniqueness. What distinguishes humans from other animals? Having souls, their discovery of fire, or their invention of tools? There is now another bold thesis. Yuval Harari argues that what distinguishes us is our ability to co-operate with very large numbers of other humans in very flex-ible and diverse modes. If he is right, we may need to rethink some of our central assumptions (Altinay, 2015).

In his “the perils of algorithmic governance” Owen, (2015:2), writes that the state is built on a bargain with citizens. States provide collective social goods, and in turn, via a system of norms, insti-tutions, regulations and ethics to hold this power accountable, citizens give states legitimacy. This bargain created order and stability out of what was an increasingly chaotic system. If algorithms represent a new ungov-erned space, a hidden and potentially ever-evolving unknowable public good, then they are an affront to democracy, one that requires transparency and accountability in order to function. A node of power that exists outside of these bounds is a threat to the notion of collective governance itself. This, at its core, is a profoundly undemocratic notion - one that states will have to engage with to remain relevant and legit to their digital citizenry who give them their power.

This article addresses the challenges of implementing human rights in nations that lack rudimen-tary constitutions let alone universal declarations, whose authorial agency is foreign to them, that will enable these rights and laws. It discusses the emergence of rights resilience inherent in community governance dynamics that have been relegated to the dignity of incipient archaism versus the more professional state and the vocal non-state human rights agencies and advocacy groups. The dilemma is the ability to situate fittingly the rights discourse that submits itself, seems within grasp only to elude, and appears readily doable only to resist fulfilment.

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2. Statement of the problem

The post WWII human community had the firm belief that a global collective security system capable of limiting the misery of people living under conflicts and complex emergencies would have emerged. Fifty years on, notwithstanding an array of declarations, communiqués and action pro-grammes, the humanitarian crisis continues unabated, while rapid political developments continue to make new demands on individuals and communities already at the brink of collapse. Borders that were curved out by reckless colonial policies and internal strife has rendered Africa as a tragic scene of present day human crisis; while the massive militarisation that feeds the persistent armed conflicts has squandered valuable human and social capital, rendering populations chronically dependent on international charity. Civilian deaths, armed robbery and abductions, violence against women, girls and children as a savage instrument of humiliation and a crime of genocide, diseases and ethnicity are principal sources of human insecurity. Longer term threats to security include poverty, conflict over scarce resources, external economic shocks, weak institutions coupled with poor governance; shifting vulnerability from armed threats to structural problems confronting states (UNCHS, 2003).

In recent decades, communities in Africa have faced continuous cycles of crisis. These are the result of complex interactions between political, economic, social and environmental factors (Tim, Mark, Tom and Suzanne, 2012). From those different crises, food insecurity is in the forefront. Food insecurity is the main problem in a number of countries specially; it is more severe in the Horn of Africa. In spite of the significant agricultural potential because of its water resources, its fertile land areas, and its large labour pool, Africa was unable to meet its food needs, and is food insecure for a number of years. A significant number of Africans is chronically food insecure, unable to ac-cess nutrition for an active, healthy life - even in the absence of shocks, suffering from livelihood insecurity for a long period. For example, according to Devereux (2000)

Hence, international organisations, states and non-state entities have been undertaking different measures. Consequently, some countries made significant improvements in reducing the number of food insecure people and hunger while others are still struggling with it. Grebmer (2013) pointed out that, for example, ten countries from the world had made some progress in reducing hunger since the early 1990s measured in global hunger index (GHI) in terms of improvements in GHI scores. However, regardless of the improvements in the general trend, still millions suffer from hunger. Hence, the knowledge gap addresses a single research question. How could rights be resilient?

3. Human rights concepts and resilient rights 3.1. Human security Human security, a post-Cold War concept, is a multi-disciplinary understanding of security in-

volving a number of research fields, which equates security with people‟s wellness; ensuring freedom from want -- the basic idea that violence, poverty, inequality, diseases, and environmental degrada-tion are inseparable concepts in addressing the root causes of human insecurity. Freedom from fear -- that seeks to limit the practice of human security to protecting individuals from violent conflicts refers to an emerging paradigm for understanding global vulnerabilities whose proponents challenge the notion of national security by arguing that the proper referent for security should be the individ-ual rather. It examines both the national and the global concerns of human security and seeks to deal with these concerns through a new human development paradigm. It captures the potential peace dividend, a new form of development co-operation and a restructured system of global institutions; with the scope of global security expanded to include threats in economic, food, health, environ-mental, personal and community securities (UNCHS, 2003).

3.2. A Declaration not universal In order for there to be international human rights law, there must be a set of human rights that

have universal acceptance. The conception of human rights must be such that it embodies rights that a human being is entitled to regardless of where they reside. A notion of human rights that does not embrace the rights of all human beings is bound to fail for the main reason that those societies

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whose conception of human rights are not accommodated will take it as an imposition from other cultures. It is not difficult to identify those ideas in the Charter that derive from the Magna Carta, the American and French revolutions and modern illiberal democracies. Nevertheless, one can ask, does anything in the Charter derive from for instance, Africa? If not, should Africa see it as its charter and not as alien ideas that is imposed from without (Leggesse, in Thompson (ed.), 1980)? The concept of human rights lacks this universality. It can be elucidated by taking its varying concepts as conjured up by the two ideologies of the 20th century - individual vs. group rights.

3.3. Individual vs. group rights

In some nations, abundant individual rights are concretely stated and have first priority, while economic, cultural, social rights are vague, an approach that places them at variance with many na-tions that give socio-economic rights much greater emphasis (Scobble and Wiseberg in Wanda, 1981). Karl Marx criticised this conception of human rights saying none of the so-called rights of man goes beyond the egoistic man, the man withdrawn into himself, his private interest and his private choice, and separated from the com-munity as a member of civil society (Marx, in Thompson, 1980:34). Under the Marxist conception, human rights are theoretically conceived as an empowerment, a moral claim that the person makes on socie-ty as a whole (Hehir, in Thompson, 1980). This view yields the correlative notion of an expansive definition of the state. While the state is ultimately destined to wither away, in the interim phase of perfecting society, the state is the ultimate, perhaps the principal agency that guarantees that each person has access to the basic social and economic goods necessary for decent existence (Ibid).. ...these rights were embodied in social security programmes, national health care systems, and state housing programmes, which became nearly universal (Bennet, in Wanda et al., 1981).

The Marxist inspired discourse seeks to understand the configuration of social forces in the con-text of the always-impending social transformation of society based on the balance of such forces: the historical and class role of civil society in social transformation and its relationship to the forces of production and the state (Costantinos 1997: c: 11-13). If researchers propitiously consent to the Northern definition as universal, they will inevitably be obligated to accept a specific cultural and political definition of rights that will foil its purported tenacity. Hence, being sovereign bodies under international law, a clear comprehension of rights by states is a prerequisite to arrive at a definition that can have a global acceptance. This is because, except for citizens of member states of the EU, no individual has redress if the rights guaranteed as an individual by a treaty in which his/her coun-try is a signatory, are violated (Gebre Egziabher, 1991).

Given these different conceptions of rights, it becomes essential to examine the essence of hu-man rights by tracing its historical development. This, in turn, calls for an examination of human history since the time people started living together as individuals that need each other such that the realisation of at least some rights of the dominant group needed on imposition of duties (obliga-tions) on the subservient group. This seems to be more plausible since, unless some sectors of socie-ty are aware of their rights, other members of that society will not be expected to be aware of any corresponding obligations. It would also be a valid proposition to state that the conception of rights with corresponding obligations must have started in relation to things that must have been essential for human survival - things that were indispensable to meet their needs. It is relevant to raise the question what could the needs of African „slaves‟ in the US that warranted a conception of needs for survival to realise which regime of rights for a group must have been the prime factor? Put different-ly, could there be a distinction between human needs and wants?

4. Resilient rights 4.1. Resilience Resilient rights are effectiveness in ensuring people‟s needs (engagement time, duration) strength

(rate), reliability, reversibility; eschewability, modifiability to buffer, resist or conform). Resilience is augured on change (household, inter-group, group, individual: genetic, morphological, physiological, and psychological). Response can be adaptive in short run but not adaptive in long run or can be non-random (space and time, space order, time order) or random (time order, space order, space

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and time). Resilient rights are the ability of communities to invoke innate resurgence to any shock, threat and stress to the security of their livelihoods. Resilient rights are a unique adaptive strategy of peoples that lead to sustainable livelihoods. Frankenberger, et al., (2012), define resilience as

The ability of countries, communities, and households to anticipate efficiently, adapt and/or recover from the effects of potentially hazardous occurrences (natural disasters, economic instability, and conflict) in a man-ner that protects livelihoods, accelerates and sustains recovery, and supports economic growth. For others resili-ence is defined as “…the ability of countries, communities, and households to manage change, by maintaining or transforming living standards in the face of shocks or stresses – such as earthquakes, drought or violent conflict, without compromising their long-term prospects (Borenstein, 2014).

According to Klaus von Grebmer et al (2013), there are three capacities of resilience. These are absorptive capacity, adaptive capacity and transformative capacity. Hence, resilience is the result of not just one, but all these three capacities. These three different responses link to different intensities of shock or change in a broadly hierarchical manner. The lower the intensity of the shock, the more likely the household, community, or system will be able to resist it effectively, absorbing its impacts without changing its function, status, or state. When the shock or stressor exceeds this absorptive capacity, however, individuals and communities will then exercise their adaptive resilience, which involves making incremental changes to keep functioning without major qualitative changes in func-tion or structure. These adjustments can take many forms. These adaptations can be individual or collective, and they can take place at multiple levels, such as among or between households or com-munities (Grebmer, et al., 2013).

An increased awareness of this problem has led us to question the nature of rights, which has existed providing significant impetus for change in our consciousness and practice. This, rights ad-vocates hope, would be a major opening for the mutual incorporation of strategies and process in a more dynamic and complex articulation of professional work. Consequently, rights advocates are increasingly paying attention to the question of engaging affected societies in rights projects. By es-tablishing a resilient society strategy, the sector would have taken a first bold step in gearing individ-ual groups and networks into action, and generating the momentum required for a true process of participatory and collaborative engagement for human rights. Let this stand as a testimony to our open invitation to governments, business and civil society organizations of a renewed commitment to contribute to stemming the tide of famine, displacement and human distress.

4.2. Resilient rights agency and operative ideology

Resilient rights agency refers to the full range of significant participants and their activities and relations to resilient rights policy formulation and manage-ment. Participants include potential as well as actual domestic as well as interna-tional actors. State and non-state stake-holders find a difficult choice to make when invoking human rights. While the state human rights agencies job is to protect the state more than the right bearers do, the non-state actors demonise the state, bordering on anarchical recom-mendations. These undercurrents determine the scope and nature of agency specific needs, impera-tives and causes for interaction in a human rights exercise that is prognostically dominated by non-state actors. The basic point here is that the extent and nature of rights resilience are conditioned by the breadth of the range of available participants and the degree of uncertainty and complexity that charac-terised their agency and functional relations. In reality, a rich associational life characterises many traditional societies, but the richness of such forms of associational life does not imply the presence of a strong civil society as concealed here. The kinds of associations prevalent in the context of heg-emonic regimes tend to reflect the weak character of the state.

Fig 1 Benchmarks for Resilient rights

Human Resilience Social Capital

Freedom of Conscience Freedom from Want

Resilient rights Wealth, pursuits and rights

Ecological stability Economic efficiency

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Fig 2: Resilient rights added value - policy implications Benchmarks for resilient rights

CAPITAL Added value Economic Efficiency Social Equitability Ecological Stability

Human CAPITAL

Empowerment Rights

Resilience

Freedom of conscience

Productivity

Resilience

Social CAPITAL

Collective action Rights

Resilience

Governance

Resilience

Physical CAPITAL

Productivity

Sustainability

Management

Natural CAPITAL

Sustainability Rights

Resilience Management

Resilience

Legend Significant added values Rights Resilience

Strong impact and add value for Rights Resilience

Informal association are characterised by fragmentation and disengagement from the state insti-tutions. While associations exist, they have not developed formal structures and not openly present-ed themselves in the public area. The weakness of the state meant that few incentives existed to form autonomous organisations to engage with the state rather the „exit‟ option prevailed as individ-uals preferred to remain outside the reach of state institutions. At the structural level, a certain hier-archy of agency and activity is evident within the network of rights participants, such that some ac-tors assume primary position relative to others that are by comparison relegated to be limited players in human rights. This then characterise the „enabling environment‟ for resilient rights that is modulated and, at times, mediated by a number of distinctive and shared additional elements. This include con-cepts and rules of human rights, national and cultural values, traditions of political discourse and modes of representation of specific individual interests, needs, wants and issues. These elements, or complexes of elements, will tend to assume varying forms and enter into shifting relations of com-petition, co-operation and hegemony during the exercise of participation.

Beyond the sphere of agency therefore, opportunities, possibilities and problems of resilient rights can be grasped in terms of the related domain of ideology. Ideological elements and con-structs might be seen as the very constitutive structure of resilient rights process openness and clo-sure. Resilient rights ideology relates to complexes of ideas, beliefs, goals and issues that can come into co-operative play (the underlying thesis of resilient rights discourse) or competitive contestation and governance reform (which the resilient rights construct underpin). It includes alternative defini-tions of societal vulnerabilities and problems and varying solutions offered for them.

5. Discussion 5.1. Social capital as a foundation of resilient rights

The enormous information on African collectives emerging in literature is a much needed reme-dial to the despondency prevailing among academia in the eighties. Having quailed of overhauling the authoritarian state, foreign interventions have rightfully focused their scrutiny on revitalised so-cial movements, confident that these may organically lead to democratic states. In the current drive for democracy, civil society and institutions within it are foregrounded as the arena, agents and instru-ments of democratisation. Internal and external demands reform the state into a system of transpar-ent practices has placed a heavy emphasis on social institutions as autonomous actors within rights projects. Ideally, society yields or should bear the instinctive interests, demands and institutional mechanisms of human rights. From this perspective, the state has only a limited role to play. Its function will not be to manage society‟s rights aspirations and activities, but to create the enabling

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conditions for their free play, where institutions of civil society must be allowed to form and run themselves. When they begin to address longer socio-economic and political issues beyond their lim-ited communal concerns, they should be able to do so in terms of their specific interests and compe-tence, not as mere instruments or extensions of states.

Alternatively, the underdevelopment of civil society in Africa and the incapacities of institutions within it are seen as major barriers to its historical mission. The activities of some social institutions may have the salutary effect of bringing into transparency the work of the state, and of opening-up state institutions and practices to public suiting. Nevertheless, the overall weakness of African civil societies is often cited as a fundamental structural constraint on rights transformation. Rather than offering agency and arena for upholding human rights, civil societies are generally seen as objects of reform because of low levels of economic, technological, professional and cultural development and high levels of illiteracy. On account of this view, the state assumes the purveyor of human rights.

It is assigned the task of nothing less than cultivating civil society itself through political education and mobilisation. The state is not pushed to the background as society activates itself and leads the struggle for rights. We have here, then, two divergent representations of civil society accompanied by somewhat conflicting conceptions of the role of the state in the African passage to upholding human rights. The perception of society as producer of the spontaneous interests, demands and institutional resources of rights change, to some degree, conflicts with the view of civil societies in Africa as weakly developed social and institu-tional structures in need of cultivation and support by the state. The conception of the state as creator of the enabling environment for the free rights activities of individuals and groups diverges from the view of government as political edu-cator, mobiliser and democratiser of society (Costantinos, 1996:344).

Moreover, these conflicting perspectives commonly tend to confuse representations of civil society and the state as conceptual or ideal categories, often conflated into the immediate stuff of African po-litical and social experience. This is not to deny that there are representations of civil society and the state in current perspectives on upholding human rights in Africa. It is to note a disabling analytical tendency in which the actualities of African politics (tribalism, the government of individuals and groups rather than the rule of laws and so on) tend to be pre-empted and displaced by the vital con-ceptual categories used to describe them otherwise (Ibid).i

It posits that it is the state’s responsibility to settle conflict in the society. The state in this sense does not occu-py a position opposite to that of the society, but is if anything compliant. Society becomes civil when it seeks to de-fine and establish legitimate political authority. Notably, the processes of establishing norms that define legitimacy are also an aspect of civil society. To crown this, is the process by which the dominant class create and protects its hegemonic grip on the state, while allowing to be presented to subordinate classes as legitimate (Ibid).

In its most orthodox definition, civil society is a political space sandwiched between communi-ties and the state viewed as an amphitheatre for mediation, where citizens struggle to organise to further their collective wills. It thus comprises a set of collective activities of non-state entities, which assemble citizens. Nevertheless, organisational and instrumental definitions tend to ignore relational aspects of state and civil society, but although they are separate from each other, they are also in several ways dependant on one another, at times even mutually reinforcing. Civil society ex-ists outside of the partisan political arena even though it can be drawn in politically (Keller, 1997).

Accordingly, civil society is not society writ at large, but merely a subset of it. What defines civil society is therefore its agenda ... a materialisation that is situational and spasmodic moved by circumstances to engage in politics. Building on this instrumental and organisational model, we celebrate the catalytic role that such groups can play in incubating and then spurring regime change in the efforts to build a viable rights order. Nevertheless, there are academic forces that claim there is nothing inherent about CSOs that make them opponents of authori-tarianism and proponents of rights. Accordingly, the impetus for civil society involvement in rights can be located in two externalities - a wider social movement and political opportunity. (Oyugi, 2000:3).

5.2. Infantile pragmatism

The notion of infantile pragmatism is invoked here to point to certain conceptual shortcomings in current perspectives on human rights reform. These shortcomings can be seen as outcomes of

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more or less conscious attempts of indigenous governments and their international backers to get their hands quickly on urgent or practical matters of human rights without worrying much about ab-stract theory. One manifestation of infantile pragmatism is the pre-emotive socialisation of rights ideas and practices. A process, which often spawns an attendant rhetorical over-simplification of difficult concepts, this socialisation is disabling as a method of both grasping rights ideas and rules in all their openness and complexity, and making the ideas tractable to transparent and sustainable institutional practice. Another manifestation of the infantile realist approach to human rights is the simple equa-tion of partisan elaboration of rights ideology with the production of rights ideas, values and goals.

Here, our attention and thought are diverted from the critical destination between, on the one hand, a system of abstract categories as a construct of an explicit rationalisation, a formal conceptu-alisation and design, and, broad and diverse domains of ideology and purposefulness in the pleni-tude of social experience, on the other. We are discouraged from acknowledging the distance and tension between these two spheres. Instead, one is led to believe that ideological construction in one sphere is reducible to ideological construction in the other. Statements constitution must be a crea-tion of the citizenry... and ... law should come from the populace rather than palace; suggest the form of a putative attribution of authorial agency in the making of a rights constitution to an organi-sationally underdeveloped, democratically naïve civil society.

Still another expression of infantile pragmatism in existing perspectives and projects of human rights in Africa is the common assumption that the proliferation of social organisations, mainly in-digenous non-state organisations is, in and of itself, an index of democratisation. The assumption seems plausible. After all, what is more obvious in human rights reform than the goal of increasing the number of social institutions that will build stronger civil societies that will advocate for human rights in the continent? Nevertheless, the assumption is open to question. The growing number and diversity of NGOs in Africa (some of them an outcome of funding by external donors than an in-digenous grassroots phenomenon) mean that the organisations have very uneven political and pro-fessional capabilities, and differing levels of commitment to human rights.ii

5.1. Inattention to problems of articulation of rights systems:

When it is not dissolved into the immediate reality of political, often partisan or ethnocentric ac-tivity, human rights in Africa is likely to be represented as pure principle that needs only proper ap-plication. Practitioners and analysts in the continent tend to pass quickly over the particular nature of human rights in fragmentary presence in much of Africa, adjusting it against an ideal-general con-ception of what it might be. On the implicit, theoretically complacent assumption that formalistic, rhetorical modes of circulation of rights ideas and values in Africa nearly exhaust their articulation there, one often rushes to matters of “implementation”. Consequently, critical problems concerning the philosophical and practical entrenchment of rights system and process receive scant attention. Costantinos (1996:233) underpins the fundamental issues of how concepts and practices of rights could be generated and sustained under historically hectic conditions and the manner in which they are likely to gain systemic integrity, autonomy and broad social currency are inadequately addressed.

This relative inattention to problems of articulation of rights systems leads rights analysts and practitioners to make internal observations in terms of the rights performances of African polities without raising the question of setting up or securing the polities as rights systems in the first place. In the face of the fact that constitutions had never actually been effectively established, especially having the Bill of Rights, they are criticised for failing to up-hold the entitlements of the citizenry. Human rights must actually exist, take definite shape and structure and be-come a working process, before particular criticisms, claims and demands can be based on them. This is like at-tempting to assess failure to make a move in a game by reference to a set of rules, which had never been in force.

Existing perspectives neglect to pose the problem of articulation of human rights as a relatively autonomous mode of analysis (in which foreign projects impose standards from outside). Hence, this would consist of a set of activities in which foreign concepts and standards are neatly applied to, as distinct from produced or re-produced in African contexts and conditions. Even at the level of

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application alone, it is largely overlooked that international models may enter states and societies through a proliferation of mechanisms that hinder the growth of indigenous rights-system capacity.

5.2. Inadequate analysis of the role of external agencies:

Multilateral, bilateral and rights non-state external agencies have taken a large number of initia-tives aimed directly or indirectly at helping Africa democratise its way out of economic chaos and political instability. In doing so, they rely on a wide variety of institutional mechanisms and policies. Indeed, growing external involvement in African projects of democratisation and economic recovery has resulted in increasingly challenging problems of conceptualising and understanding the role and function of international agencies. The growth of foreign interventions seems in marked contrast to the limited thought and effort exerted to put the interventions in coherent theoretical or strategic perspective. Hence, the hypothesis to be tested here is the effectiveness of human rights conditional-ity by donors is a function of the dependence of a recipient government on foreign aid. Government compliance with donor conditions varies with the type of policy reform. Compliance is high for measures that can be implemented by a small number of central government officials and low for reforms requiring extensive institutional change.

The imposition by donors of political conditions on aid disbursements is alone insufficient to ef-fect rights in the absence of organised domestic constituencies for human rights. Intervention by donors disrupts peaceful transitions to the extent that it is perceived as partisan. It can however, contribute to rights struggle when it provides neutral mediation. Here, one can ask what is the overall rationality or significance of the great traffic of international rights advocacy, the proliferating activities that seem to show little regard for economy of co-ordination. How far and in what ways do various international agencies, pro-grammes, mechanisms, forms of knowledge and technical assistance feed on one another in helping set the boundaries of rights reform in Africa? The important issues that these questions suggest are not sufficiently addressed, or even raised, in much of the current discussions. Insofar as the activities of external agencies are not understood by local communities, their rights impact may diminish with their proliferation. This can mean little more than a weakly coordinated multi-plication of projects which have immediately recognisable effects in limited areas, but which seem to suspend rather than serve the ultimate goals of upholding rights. The strategic co-ordination of diverse international rights activities can be-come a challenge because of their narrowly technocratic orientation and shortcomings in the relational and contextual articulation of external projects, their limited generalisability and variability (Costantinos, 1996: 221).

6. Conclusion

To sum up, discussions and analyses of human rights are generally are marked by several limita-tions: the tendency to narrow rights thoughts and practices to the terms and categories of immedi-ate, not very well considered, political and social action, a infantile pragmatism, as it were. The limi-tations also arise from inattention to problems of articulation or production of rights systems and process within African politics rather than simply as formal or abstract possibilities. The ambiguity as to whether civil society is the agent or object of rights change and a nearly exclusive concern in certain institutional perspectives on rights with generic attributes of political agencies and conse-quent neglect of analysis in terms of their specific performances is another challenge. Finally, we have the inadequate treatment of the role of international agencies in human rights. African gov-ernments and societies undoubtedly depend on international assistance in their projects of reform. Such assistance is vital in many areas and at many levels. Yet, it must be recognised that external support creates problems as well as opportunities for Africa. In confronting the imperatives of polit-ical change, nothing is more challenging for polities than the strategic co-ordination of diverse global and local elements, relations and activities within themselves, nor has anything greater potential for enabling them achieve human rights. This is particularly the case where „self-proclaimed keepers of human rights‟ tend to view the relations of their particular agenda of state-bashing with their broader responsibilities of the emergence of a rights culture as relatively simple and direct, unproblematically reducing the latter to the former and relegating to void objective standards and concepts of political conduct of stakeholders. The issue here is not simply one of “application” of rules to particular

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rights activities. Nor is it one of dissolving agent-catered strategies into “objective” principles and norms. It is rather the production or articulation of self-empowering elements and forms within and through the strategic (and non-strategic) activities of various rights bearers and enforcers. Highlight-ing the mutually constitutive articulation of strategy and process, we shift the centre of analysis away from the two as separate formations that enter only externally in relations with each other.

Figure 1: Quadrennial spheres for mainstreaming rightsiii resilience

This shift of analytical focus serves to emphasise the critical point that the task of broadly struc-turing resilient rights, as a gender-sensitive self-empowering change mechanism, is more important than that of promoting it within the specific programme design of a particular rights agency‟s agen-da. The latter, which manifest in a variety of efforts ranging from advocacy on number of political prisoners and journalists in jail, is or should be only a second-order concern compared to the for-mer, which is primarily strategic tool adopted by communities to enhance their adaptive strategies in the emergence of rights culture. Resilient livelihoods are critical for the world‟s most vulnerable people to achieve freedom from fear and want – one of the most basic rights. Resilience helps frame problems coherently and holistically. Linking interrelated short-term shocks and long-term systemic change gives a more complete view of the factors that lead people to drift into poverty, food and nutrition insecurity, or both (Grebmer et al., 2013). Therefore, resilience strategies inte-grate both short and long-term oriented strategies. More integrated multi-sectoral programmes and partnerships could adopt a more systemic and holistic approach to human rights.

While universal laws are crucial to human rights, resilient rights must proceed from the acknowl-edgement that all those involved in the process must and should broaden their perception and real-ise that the key to protecting their rights, is with the people. The so-called poor have adaptive strate-gies that have been outmoded through policies and actions of colonial, neo-colonial and autocratic states and international finance institutions. It is easy to follow the current trend within the interna-tional community and advocate universal human rights as desirable tools to promoting resilient rights. Nor is it difficult to make normative judgements about how human rights practitioners should be-have if rights are to be resilient. Nonetheless, the spiritual dimensions of community unity and strength, for instance, has enabled people to organise themselves and realise their potential and power as individuals and communities, working towards the kind of self-determination, which are an essential conditions for interdependence. Kinship, unity of purpose and oneness among community members facilitate the task of effective, organisational action, which is in turn expedited by leader-

Research into values and cultures of communities

to identify

Adaptive cultural rights

Cultural rights abuses (violence against women & children, slavery, ethnic wars)

Synergy in resilience:

Rights culture embedded in communities

Rights culture in law en-forcement

Policies, Strategies & Process

Rights Rules & Institutions

Mainstream cultural rights and

Communities fight rights abuses

Capacity building for a rights culture

Education

Legislation

Institutional formation

Costantinos


ship. Community members cherish shared perceptions and common cultural values on how they perceive themselves in relation to their environment.iv

Resilient rights do not enter local processes as an external ideology, constructing and deploying its concepts in sterile abstraction from the immediacies of indigenous traditions, beliefs and values. Ide-as addressing resilient rights cannot come into play in total opposition to historic values. The challenge remains, in the struggle over the establishment of resilient rights invocation and engagement, states, human rights groups equate the articulation of their agenda with the production of broad-based concepts, norms and goals which should govern rights at all levels. This raises the question of whether their brand of human rights signify change in terms of the transformation of the immediate stuff of stakeholder-specific partisan agenda into a new kind of co-evolutionary activity - an activity mediated and guided by objective and critical policy analysis, rules and principles.

The issue in state/non-state human right institution-citizens relations is whether they have the capacity and the will to relate to citizens based on mutual respect, autonomy, equality and trust. In the light of these, it is possible to draw a conceptual distinction between levels of articulation in rights and to note the implications of their relations for process openness for resilient rights. There are first, representations of specific interests, identities, needs, wishes, goals, claims, and demands in rights, different in di-verse individuals, groups and communities. These are to be distinguished from a second level of production and circulation of ideology where broad-based concepts, principles and rules take shape and come into play in invoking rights.

In the long term, human security is best guaranteed by rights, accountable and stable states pre-siding over human development. A far-reaching agenda of security sector reform, ensuring civilian con-trol of security and armed forces, will help to deliver these gains. The next stage in this process is deepening constitutionalism in member states, adopting common and ever-higher standards for human security and the rule of law. More than any other region, Africa needs a workable and coherent peace and secu-rity architecture. For the ultimate hope to salvage the imperilled process seems to lie precisely in strengthening legitimacy of the state; strategies need to be undertaken simultaneously at local levels, in the social, political, military and economic spheres. Resilient strategies must be simultaneously objec-tive, dealing with the substantive issues and the institutional mechanisms for human rights, and subjective, in developing indigenous human right awareness and understanding popular expectations.

Resilient rights are unique adaptive strategies of peoples that lead to self-empowered and resilient livelihoods, which are critical for freedom of conscience and freedom from want – one of the most basic human rights. It augurs on emergence of resilient rights inherent in community governance dynamics that have been relegated to the dignity of incipient archaism by the vocal non-state human rights agencies and advocacy groups. Such dynamic of rights inter play is dependent upon the specific social agency and political ideology. Hence, as a way of contributing to the overcoming such difficulties we may theorise resilient rights systems as vibrant interaction of strategy and process. It is not so easy to conceptualise a resilient rights system as a working process, which is balanced against strategy, to determine what makes for real, as opposed to vacuously formal, processes.

Building on the strength and addressing the weaknesses of the various theories and philosophies, rights resilience emerges with focussed and community-friendly tools and processes. Here rights resilience becomes truly an instrument of self-empowerment, whereby rights emerge from the responsible ac-tion of socially and politically motivated citizens. Whether human rights in Africa is defined in terms of individual freedom or collective rights, government policy or citizen action, private value or pub-lic norm, the upshot of the relative inattention to problems of articulation of indigenous rights sys-tems and processes in itself makes human rights at once the most reified of idea systems. Within current projects of political reform, human rights is either conventionalised or sterilised on terrain of theory and often vacuously formalised on the ground of practice. It enters African politics and society in relatively abstract and plain form, yet is expected to land itself to immediate and vital African polity's socio-political experience. It suggests itself, seems within reach only to elude, and appears readily practicable only to resist realisation.

Costantinos


References and endnotes Altinay, Hakan. The myopia of human rights (openDemocracy, free thinking for the world, 14 Oct 2015,

https://www.opendemocracy.net/openglobalrights/hakan-altinay/myopia-of-human-rights) Bay, C. Politics and Pseudo-politics: A Critical Evaluation of Some Behavioural Literature, (in Mecoy C. & J. Play-

ford (eds.) Apolitical Politics, A Critique of Behaviourism, 1967), pp. 31-33 Bennet, John Bali. Human Rights or State Expansions. Cross National Definitions of Constitutional Rights, 1870-

1970 (in Wanda, Ved P.; Sarrit JR & Shaephere G. Jr. (eds) Global Human Rights : Public Policies, Comparative Measures and NGO Strategies, Westview Press, Boulder, Colorado, 1981) p. 176

Hehir, J. Bryan. Human Rights and US Foreign Policy: A Perspective from Theological Ethics (in Thompson K.W. (Ed.) The Moral imperatives of Human Rights: A World Survey. (University of America Press Inc. 1980)

Keane, J. Democracy and Civil Society, (Verso London/New York, 1988), pp 39 Leggesse, Asmerom. Human Rights in African Political Culture (in K.W. Thompson (ed) The Moral imperatives of

Human Rights: A World Survey (University Press of America Inc. 1980) p. 10 Marx, Karl. On the Jewish Question (in Thompson, Kenneth W. (ed) The Moral imperatives of Human Rights: A

World Survey (University of America Press Inc., 1980), p.9 Owen, Taylor. The Violence of Algorithms, why big data is only as smart as those who generate it, (Foreign Affairs,

Mar 25, 2015, https://www.foreignaffairs.com/articles/2015-05-25/violence-algorithms?cid=nlc-twofa-20150528&sp_mid=48757432&sp_rid=Y29zdHlAY29zdGFudGlub3MubmV0S0)

Oyugi, E. Civil Society and Popular Participation in Development in Eastern Africa (in Costantinos, Assessment of Lessons Learned for Popular Participation in Political Consensus Building (Addis Ababa, UNECA, 2000)

Scobble H.M. and Wiseberg, L.S. The Problems of Comparative Research on Human Rights (in Wanda, Ved. P.; Sar-rit JR and Shaephere G. Jr. (eds) Global Human Rights : Public Policies, Comparative Measures and NGO Strategies. Westview Press, Boulder, Colorado, 1981), p. 9

i Whereas these movements were once perceived as the touchstone of human rights and consolidation, their brief

has been widened. Researchers and policy makers alike see them as the harbingers of development and the solution to the deep poverty that afflicts the continent. Can these movements and groups, loosely termed social capital, carry the large brief cut out for them? Given the predatory nature of the state, shouldn't studies focus as decisively on the state as a continuing variable in the increasing de-institutionalisation and weakening of social capital? Social capital is cru-cial to human security deepening but sounds a more sceptical note and deprecates the carnival air surrounding much of the debate on its midwifery of human security because the complexities of African associational life are less neat and seamier, than much of the literature cares to admit. Undoubtedly, the issues usually raised are broad domain of enquiries. However, given the issue at hand and the people affected, an attempt must be made to answer them as a pre-requisite to providing an understanding to the unfolding insecurity and struggles for the expansion of rights space. Civil society is a conglomeration of politically active citizens (Oyugi, 2000:3).

ii To some, society by nature is in a state of uninterrupted conflict; hence, the state has to impose order. Never-theless, what emerges out of this position is the establishment of order through near total subjection of individual to unlimited power. On the other hand, a school of thought seeks equilibrium between the unlimited power of the state and individual rights where the idea of a constitutional state comes to the fore (Keane, 1988:8). They provide a range of social services of varying proximity and relevance to of human rights and do not function simply as instruments to those ends, but have their own inclinations, concerns and motivations, which African societies must take into ac-count. Far from contributing to the strengthening of civil society vis-à-vis the state, they can function as instruments for the consolidation of technocratic elite within the non-state sector. In sum, infantile pragmatism within existing perspectives and projects of democratisation in Africa emphasises the immediacies of institutional and political activi-ty to the neglect of the constitutive and regulative concepts and norms that define structure and validate rights insti-tutions and practices. It attempts to establish a direct relation to social experience, largely bypassing the intangible yet no less significant terrain of critical political thought. Its immediate turn to the practical tasks of inducing people to participate in ostensibly rights activities, the full meaning of which is often beyond the grasp of the participants, tends to become a substitute for the making of transparent and open rules of engagement.

iii Based on current experience and aimed at guiding mainstreaming rights at different levels, five simple princi-

ples have emerged that attempt to provide a comprehensive framework to analyse where and when to introduce and implement rights mainstreaming.

Principle 1: developing a clearly defined and focused entry point or theme for mainstreaming rights in or-der to maintain the critical focus necessary to make an impact.

Principle 2: Policies or strategic frameworks for rights should be used as the frame of reference. Main-streaming efforts should be located within existing institutional structures.

Principle 3: necessitates that advocacy, sensitisation, and capacity building in order to place people in a better position to undertake rights mainstreaming;

Principle 4 asserts the need to maintain a distinction between two domains in mainstreaming: the internal domain, where risks and vulnerabilities are addressed; and the external domain, where the local government un-dertakes rights interventions based on its mandate and capacities in support of local or national strategic efforts.

Principle 5 highlights the importance of developing strategic partnerships based upon comparative ad-vantage, cost effectiveness, and collaboration. iv They also share common ideology - definition of goals, action statements & formulation of strategies

https://www.opendemocracy.net/openglobalrights/hakan-altinay/myopia-of-human-rights

https://www.foreignaffairs.com/articles/2015-05-25/violence-algorithms?cid=nlc-twofa-20150528&sp_mid=48757432&sp_rid=Y29zdHlAY29zdGFudGlub3MubmV0S0

https://www.foreignaffairs.com/articles/2015-05-25/violence-algorithms?cid=nlc-twofa-20150528&sp_mid=48757432&sp_rid=Y29zdHlAY29zdGFudGlub3MubmV0S0

Documents

Operative Clashes and Nexuses: ‘Resilient’ vs. ‘Conventional’ Human Rights RP Vol. IX No. XXVIII, MMXVI