Where do cultural rights end and human rights begin?

Human Rights Panel

Chair Lotte Hughes with Esther Njenga, Celia Nyamweru, Faith Alubbe, Agnes Pareyio

On the 14th of April We held a one day workshop entitled Cultural Rights in Critical Perspective: a Socio-cultural Conundrum at the British Institute in East Africa (BIEA). Nairobi. We invited a wide range of stakeholders and had approximately 40 attendees. The day was divided into three different discussion panels on human rights, land rights and devolution. The panel was chaired by Lotte Hughes and included Esther Njenga, Celia Nyamweru, Faith Alubbe and Agnes Pareyio. The panellists all spoke briefly to allow as much time as possible for discussion, we hope to continue those discussions here. Please read the panel summary below and feel free to comment whether you attended the workshop or not.

Where do cultural rights end and human rights begin?

The premise of this panel discussion was the potential for conflict between constitutional ‘cultural rights’ and outlawed harmful cultural practices which can constitute an abuse of human rights. Examples of the latter include FGM, forced early marriage, and discrimination against women in land and other inheritance disputes. Speakers suggested that the two sets of rights can co-exist in some spaces, but there is a need for more education so people can ‘be moved towards an understanding of the difference between “good” culture and “bad” culture’. Human rights advocates said they were proponents of cultural rights ‘so long as they are not retrogressive or repugnant’, pointing out that some harmful practices did not simply constitute HR abuses against individuals but harmed the community itself. It was best, they said, to appeal to the change makers in communities, when trying to change attitudes and practices. It was agreed we need to challenge the view of culture as static; it is in fact dynamic and constantly being remade. Several speakers spoke to FGM, one to Maasai women’s rights, while an anthropologist discussed the positive aspects of ethno-biology and cosmology, suggesting certain cultural rights can be drawn on to enhance environmental management at community level. One audience member lamented, ‘we have killed all our spiritual guides so we have lost our wonderful indigenous system of knowledge’. But others challenged the idea that elders are custodians of culture, claiming this notion can ‘entrench a particularly narrow view of culture’ and involve discrimination. The influence of elders – good or bad?

4 thoughts on “Where do cultural rights end and human rights begin?

  1. If your title based on false premise was simply meant to be thought provoking then I was mislead and I apologies. I assumed that a title given not for rhetoric but as the guide to the discussion. Because I take this forum as discussion opportunity I will proceed and may be seek to expand the discussion as a criticism to those who think of culture as local and unchanging.

    View that culture is only in the village but human rights, conference room in Geneva etc is a culture free zone. They are also practicing culture of modernity , which emphasize documents, commentaries, legal procedures and globalization of justice and systems. They have subscribed to a culture that emphasize legal procedure, logic global standard and decision making. As they assume that culture in the village , it is custom, tradition, static and old customs and harmful practices.

    Generally I am discussing on the common misconception of culture and human rights, which hinders application of this human rights concept in the local situation as rightfully observed by Kabiru. Because there are neither homogeneous or ancient culture, but culture is actively made by each society, it is dynamic. Especially its creativity and flexibility as it interacts with other culture and system shows culture as very flexible. Culture change and we should avoid straitjacketing of culture. And also appreciate the interconnection and influence of institutional order, political structures and law as they shape culture. As the institutions change so does culture.

    I was writing within the general context where most of the problems are culturalized. Culture in this reasoning is seen as an obstacle to right. Seen as a barrier to the noble project of globalization as opposed o universalisation of human rights. So that the emphasis is simply in the text of the conventions on human rights and how far a culture is compliance. Scholars like Abdullahi An Na’im and Makau Mutua have led in applying human rights to local culture and seeing how the compliment each other rather than in opposition. Look at Makau Mutua on Banjul Charter on human rights and Africa fingerprints and the Declaration of the Regional Meetings for Asia of the World Conference on Human Rights adopted 7 April 1993. While human rights are universal norms they must be viewed and applied in the cultural reality , history and even religious background. Because even the international norms change, but regional and national context must be considered. It can not be applied in a vacuum.

    it reinforces the idea that it is culture that is subordinating right and modernity corpus of human rights that free them. Therefore culture is relegated to the domain of the past. Yet the truth is that culture is not just the domain of beliefs and values, but also the product of institutional arrangements, political structures, and legal regulations. As these institutions change , it changes the belief, values and practices. This view gives no room to the change within culture or the link between power , practice and values

    However in the spirit of moving the conversation forward here is my observation. Usually when human right lawyers talk of culture , they refer to it as traditional harmful practices, old customs and sometimes ancient ways. They see themselves and their project as rooted in modernity and law and envision culture as the obstacle. The tendency to see culture as a problem is as a result of their commitment to a model of legal rationality, an idea that is incompatible with celebrating local cultural complexity. This understanding of culture is embedded in the conventions and policy documents, the wider jurisprudence of human rights, and in the discussions that take place in the human rights forum.


  2. Dr Duncan Ojwang, DR Duncan Ojwang, (SJD University Of Arizona on Indigenous Law and Policy); Lecturer University of Nairobi. Teach Human Rights and International Law says:

    The title is already very biased. Assuming that there is cultural rights and then human rights. The implication suggests that cultural rights are not really human rights. This prejudice is dominant yet very erroneous. The assumption that culture is lower and the so called human rights according to the post is higher , purer and absolute is misleading. If cultural rights are not absolute then your version of human rights are neither absolute. I have my guess of what you consider “human rights.” For example they are concepts like human dignity and right to life etc. Where are you going to get and define human dignity if it is not from culture? How are you going to give the dignity if not from a cultural content? After all how are you giving me dignity if you do not respect my own culture? It will be dignity based on your own notion or another cultural notion of what is dignified. How is that giving me individual dignity. Finally there is an assumption of Mono culture. This underlying assumption is that human right is not and can not be cultural. Or that there is one standard culture which is the model and the rest of cultures are tolerated/ accepted as much as they do not deviate from the model human culture. And this model human culture is generally the western culture. It has been accepted as the starting point of what is human rights. Human rights just like law emanates from culture. The line between human rights and culture should not be divided so sharply that the society appears to be multifaceted a=on matter of human right and not culture. If we are debating on some cultural practices we are also debating some concepts of human rights. Again our Kenya constitution puts culture as the foundation of this nation. Finally how are you going to provide for right to self determination without people choosing their own cultural, political and economic paths.


    • Thanks for your comment. This should be read in the wider context of the event as a whole, this panel was only one of three held that day. (I would recommend reading the workshop report which is available on our website, this will give you the bigger picture.) The panel title was deliberately provocative, designed to get a good discussion going – and what the panellists said certainly did that. We are well aware of the fact that cultural rights and human rights are not binary oppositions, and that CR is a sub-set of HR; so were the panellists. You accuse us of making assumptions – but then make several assumptions of your own, such as what the title supposedly implies, that whoever came up with it must be prejudiced, that the title implies CR are being regarded as lower than HR, the dominant model of culture being referred to here must be a ‘western’ one, that it shows evidence of disrespect for culture, that we were only referring to mono-culture, and so on. With respect, these assumptions lack substance and evidence. I would also question your suggestion (assumption?) that human dignity derives only from ‘culture’, is it not more fundamental than that? What about people living in multicultural societies who do not identify with one culture but many (or none), and who may come from mixed cultural backgrounds – do they not have a human right to dignity that transcends culture? Rights to dignity may be rooted in fundamental human values that are arguably nothing to do with ‘culture’ per se. These are all interesting questions and challenges that multicultural societies are grappling with in a globalised age.


  3. I think that the difference between cultural rights and human rights is that one is for the ‘tribe’ and the other is individual. John Mbiti in his book ‘African Religion and Philosophy’ points out that there was no ‘I’, only ‘we’. Being a member of a certain community meant that one had certain obligations to oneself, but more importantly, to the community. That is why every event was communal; nothing was by ‘invitation only’.
    When we look at FGM for instance, other people see it as retrogressive or inhumane, but members of that community see it as a part of the initiation or membership process. Of course they know that it caused pain or discomfort, but it was still done carried out faithfully for hundreds of years. That the members thought there was a good reason to undergo all the pain and torture, is shown that FGM was a well respected part of growing up.
    But I am not saying that I support FGM.
    My problem here is the way lawyers approach this as a human rights problem, totally ignoring the basis for such practices.
    If something has been part of a culture for 500 years, I do not see how lawyers can expect to change things in 50 years.
    Members of African rural communities still attach great importance to the notion of belonging to a certain cultural group, and one of the ways of doing this is by doing what other people are required to do. I have seen girls run away from boarding school to go and get the cut. Why? Because all their friends think its a cool thing to do. Because otherwise they will be referred to as ‘uncircumcised’ which is humiliating. They do not care whether other groups do it, it makes them feel accepted in their own regions.
    This sense of ‘belonging’ is what we need to redefine so that everybody in he community accepts the fact that he cut has nothing to do with it, and that there are other ways of getting acceptance to ones group.
    Therefore, if we want to change certain cultural practices, we have to do it from the grassroots. Not by rescuing girls who are threatened with FGM, but by educating the older people of the pros and cons of carrying out these acts. As long as the older population feels that it is necessary part of life, it will be very hard to eradicate. Why are the Maasai women of Kajiado insisting that they want the practice to continue? Because they think it forms part of their identity. Why should they stop it? Give them a very good reason apart from the fact that its bad for child birth. Maasai women give birth every day, don’t they? It has to be about how this does does not define adulthood and has nothing to do with marriage.
    Cultural anthropologists are better will be better at this because they understand that culture is dynamic, and can change for the better if the right course is followed, without invoking human rights. Retrogressive? For who?
    The approach is important.


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