For a rootless cosmopolitan whose mental compass is not constricted to lines drawn on maps, there is frustrating helplessness about the state of human rights in the entire world; the news looks like a doomsday phantasmagoria. Smoke rising. Shots fired. People running. Always running from guns, water and other people. Total chaos. Just why, with all the numerous rights treaties in existence - human rights treaties concluded with different country permutations and combinations either on the international plane (pun intended) or on a regional level - human rights have been obeyed more in theory than in practice? Why the ingenuity of rights talk?
At the very least, in my view, there are two conditions that clearly show some commitment to human rights in any legal dispensation. Firstly, there is a code of human rights that expressly exists. It is not left to the creative imaginations of judicial authorities to sweat out rights out of other legal norms that have very little to do with rights and liberties. There is always a certain dubiousness about leaving the fashioning out of substantive legal norms to the judiciary. Some call it judicial activism. Others call it nothing at all. Secondly, the textual and practical meaning of these rights must be put beyond doubt and not subject to the machinations of extra-legal factors like religion and culture or the wiles of contested history. When these two conditions exist, it is more likely than not that the enjoyment of rights would be closer to the textual language of the rights.
In my country Ghana, the second condition is absent and human rights in the second decade of the century have had a disreputable name even in the era of a Constitution that takes rights seriously. Thus, it is not merely a matter of the existence of a legal regime for the protection of rights and liberties but the disputation of what those rights and liberties mean. For there is a robust constitutional regime to recognize and protect human rights but as to what those rights mean, we cannot be sure anymore. These have been demonstrated by the things that have happened in the first half of the year. Young people making a claim to socio-economic rights, largely. Queer people making claims to fundamental human rights like conscience, association and assembly. Rastafari and Muslims making claims to the right to hold and manifest a belief. When these various issues came up for public debate, it was immediately obvious to anyone who did serious listening that there is a great misunderstanding about what rights mean and what basic decent respect for these rights will entail. For example. Young people who asked that their country be fixed were asked to fix themselves because they have been part of the mess (contested history). For queer people who asked for conscience, association and assembly, they were told that the queer marriages would never be legalized and then met with a scandalous bill (culture and religion). To Rastafari and Muslims who either wanted to carry dreadlocks or fast in schools, the response was the shutting of a door to education (public interest). In all these incidents, there were two groups who had sharply differing views of what the written word of rights meant. This typhoon of failed rights negotiations shows that a certain modicum of understanding as to what these rights mean enhances rights recognition and protection. Why are rights so contested?
One reason is the ancient art of de-humanization. This is as ancient as the development of rights goes. That’s why article 1 of the Universal Declaration of Human Rights has always intrigued me. It says:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
At the time the UDHR was drafted, it was, I think, taken for granted that all persons are human beings. Human noun. Being verb. Human being. The black person was now recognized as human being so what was there to refute the assumption underlying article 1?
However, recent history in many parts of the world clearly show that some legal and social systems do not consider all persons as human being; otherwise, racism wouldn’t exist. Sometimes it is express, most of the time, it is tacit. Like prisoners in Ghana. They are not human being. So we lock them up in a high dysfunctional reformative prison system and release monsters after. Person accused of witchcraft are not human being. So we kill them. Gay people are not human being. So we want to end them.
In the art of de-humanizing others in such a way as to de-recognize them, the diction is heavy. We rely on another device: naming. When a person is locked up and liberty denied, we call that person prisoner. When a person is a widowed old woman, we call her a witch. When a young girl does not want to be circumcised, we call her a whore. When people do not fit into any traditional gender or sexual spectrum, we call them queer. The insidiousness of language show in a subtle way, how we view and categorize otherness.
There is yet another dimension of this idea of de-humanization. Values. In every single debate about why rights should be restricted, the constant term is values. People believe that there are values that should be the life source of legal rules and not the other way round. That is to say, extra-legal values like religious and cultural values and social aspirations must be the starting point of law, and law can never have any intrinsic basic values. Thus, if my religion X prohibits the sale of Z, I must make sure laws that are enacted are consistent with my belief in the prohibition of Z’s sale. Now, this is just me, what happens when there is person R whose religion permits the sale of Z? Must the laws enacted conform to R’s belief that Z must be sold? But values are difficult to deal with because, in any legal or social structure, they will sometimes be either too difficult to find or too many to reconcile. Which is the standard for good values anyway? And it is for a very good reason that human rights frameworks avoid any reliance on values other than making exceptions permissible on grounds of public interest, public order, public morality etc. Yet, the dubiousness of these terms has had the opposite effect because people bring their idiosyncrasies to bear and interpret these terms to embody values that are considered to be pervasive in the national society. When we think of values and debate in values, we obscure the debate by relegating the human being to the back. Should the human being not be the starting point?
I have said three things so far in terms of the de-humanizing of people. Some legal and social systems don’t consider all persons to be human beings. This is catalogued by the process of naming otherness. Values obscure the human being in human rights discussions.
All I am trying to say is this: would we care more and achieve greater consensus if we acknowledge that every person is human being? With this consideration first and primary in our minds, would we consider things differently?