Recently Namibia, South Africa, Botswana, Ghana, the Philippines and India, abstained from a vote to appoint an expert on sexual and gender rights who will assess the implementation of existing international human rights instruments on how to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity, and to identify and address the root causes of violence and discrimination.
News that Namibia abstained on the adoption of a resolution on the protection and promotion of the rights of lesbians, gays, bisexuals and transgender communities was met with mixed reactions both at home and abroad.
Respected prominent academics in the liberal fringe corner were quick to lambast Namibia for lacking true commitment to human rights, arguing that the universal value of human rights remains secondary and is subject to other loyalties in the Namibian government policy. Bereft of concrete evidence to support their claims, they decried Namibia’s relationship with North Korea as an example of Namibia’s lack of commitment to the rights of gays, lesbians, bisexuals and transgender individuals. They even had the temerity and bravado to accuse President Hage Geingob of having closer ties with “the worst regimes in the world as regards the violation of human rights, than with the lesbian, gay, bisexual and transgender community at home.”
The other group argued that the resolution was reminiscent of the creation of the much-maligned International Criminal Court in that it gives the expert a blanket mandate to interfere in sensitive cultural issues related to sexuality at national level. They further argued that there is no binding international instrument that guides the council in the field of International Human Rights Law, which provides the council with an agreed definition of sexual orientation and gender identity. The absence of such a binding instrument will thus be open to abuse as it will be interpreted differently at different times and to different circumstances.
The group argued that “human rightism” belittles the principle of sovereignty. Furthermore, this group argued that Namibia’s human rights record is not found wanting as everyone’s rights are protected by the constitution.
Broadly speaking, a human right is a right that is believed to belong justifiably to every person. It is something to which you are entitled by virtue of being human. The criterion is that you have to be human to claim human rights. These rights are essentially based on the principle of respect for the individual.
Their fundamental assumption is that each person is a moral and rational being who deserves to be treated with dignity. Whereas nations or specialized groups enjoy specific rights that apply only to them, human rights are the rights to which everyone is entitled, no matter who they are or where they live, as long as they are alive.
They are not limited to freedom of speech, association and belief. They cannot solely be measured by a country’s relationship with North Korea, and surely recognition of gays, lesbians, bisexuals and transgender communities does not make a country a human rights champion. History is witness to countries that have legalized lesbian, gay, bisexual and transgender rights and yet perpetuate the most heinous human rights abuses at home and through military and economic aggression outside their borders.
The full scope of human rights is very broad. They mean choice and opportunity. They mean the freedom to obtain a job, have a career, select a partner of one’s choice and raise children. They include the right to travel widely and the right to work gainfully without harassment, abuse and threat of arbitrary dismissal. They even embrace the right to leisure, freedom from discrimination and freedom from military or economic aggression.
The philosophy of human rights interrogates the underlying basis of the concept of human rights and critically looks at its content and justification. The oldest philosophy of human rights is that they are a product of a natural law. It is commonplace to find those who argue that human rights are socially constructed and are shaped by cultural and environmental contexts, while others argue that human rights have always existed, and apply to all people regardless of culture, race, sex, or religion. The first group argues for the protection and acceptance of different cultures, which may have practices conflicting with human rights. However, it cautions that universalism of human rights advocated by the second group could be used as a form of cultural, economic or political imperialism.
Africans are very much aware of the syndrome known as “The White Man’s Burden” (a phrase used to justify imperialism – the task that white colonizers believed they had to impose their civilization on the black inhabitants of their colonies) is used as an example of imperialism and the destruction of local cultures justified by the desire to spread Eurocentric values. It is in this context that many fear that the crusading of universal human rights without regard to cultures and traditions, is a recipe for neo-colonialism. The fear is that this will destroy cultures and contemplating a society without culture is unthinkable.
The fact is that international governance of human rights is extremely weak in practice. This is because state sovereignty, which is a UN foundational principle (UN Charter Article 2), has remained a crucial obstacle to the enforcement of international human rights law. The UN project as envisaged in the Charter was never meant to be legally enforceable by international means.
This debate is broad and requires a series of analysis to firmly explain the intricacies associated with the notion of universal human rights.
• Dr Charles Mubita holds a PhD in International Relations from the University of Southern California.