Critiquing Human Rights Like It Matters: Issa Shivji’s The Concept of Human Rights in Africa

Human rights language is ubiquitous today. Starting with the Universal Declaration of Human Rights in 1948, we have since seen the proliferation of international and regional treaties and monitoring bodies. This gained pace, in particular, with the end of the Cold War and Fukuyama’s putative end of history – with human rights emerging as the ‘post-ideological’ common sense of the late 20th and early 21st centuries.1Stefan-Ludwig Hoffmann, ‘Introduction: Genealogies of Human Rights’ in Hoffmann (ed.), Human Rights in the Twentieth Century (Cambridge University Press, 2011), 1. Precisely because of the very hegemony of human rights talk in the contemporary world, critiques of human rights abound; ranging from the friendly critiques which seek to perfect an otherwise laudable idea and system, to more radical dismissals of human rights as the avatars of neoliberal capitalism and inequality.

There is much value in some of these recent critiques of human rights. It is noteworthy, however, that in a short book written in the late 1980s, the Tanzanian author and academic, Issa Shivji, articulated a critique of human rights that both anticipated many of these more recent critiques and, crucially, remains more incisive and politically relevant than most of them. Although in certain respects it is a work of its time, Shivji’s critique of human rights remains relevant for both a research agenda on human rights and radical politics in the 21st century. This review sets out the key elements of Shivji’s account of rights, and the continuing relevance of his work and this book for today.

Shivji begins the book by stating clearly that human rights, or at least what he terms the dominant/liberal conception of human rights, ‘constitutes one of the main elements in the ideological armoury of imperialism’.2Issa Shivji, The Concept of Human Rights in Africa (CODISERA, 1989), vii. As such, Shivji sets out to engage ‘the subject of human rights so as to avoid the pitfalls of a liberal perspective’.3Shivji, vii. In contrast to the claimed neutrality of the dominant discourse, Shivji’s explicit ‘point of departure and reference are the interests of the broad masses of the African people’,4Shivji, vii. – thus from the outset, Shivji’s account of human rights is both critical and partisan.

Importantly, unlike ‘petty bourgeois radical’ accounts of human rights, which are just another variation on the liberal tradition in the way in which they ‘absolutise the human rights question’, it is not Shivji’s aim or intention to ‘throw away … human rights talk’, but instead to ‘reconstruct … human rights ideology to legitimise and mobilise people’s struggles’.5Shivji, vii-viii. In this latter endeavour we find one of Shivji’s most distinctive contributions: the attempt to articulate what he calls a revolutionary conception of human rights.

The Dominant Account

Shivji’s work then sets out an account of the dominant discourse of human rights in Africa, so that he can then critique it and from that critique begin to articulate an alternate account of human rights. Shivji notes that, in real terms, one ‘can hardly talk of the African philosophy of human rights’,6Shivji, 15. instead the ‘dominant argument … propounded by most of the African and Africanist lawyers and jurists, has proceeded on the basis of an uncritical acceptance of Western liberal conceptions of human rights.

As such, notwithstanding some variations, these dominant accounts suffer from five key deficiencies: (i) they abstract from social history and concrete material conditions; (ii) they divorce the history of human rights from the history of the class struggles that were crucial in shaping them (with natural rights as the sword advancing the class interests of the rising European bourgeois and positively enacted rights as their shield once in power); (iii) they elide the ‘ideologically and politically charged’ nature of debates over the priority of rights (civil and political v social and economic etc.); (iv) ‘the prevailing human rights discourse on Africa has been singularly ‘deficient’ in contextualising the human rights ideology within the imperialist domination of Africa’; and (v) the individualist and ahistorical approach to human rights allows for a focus on discrete episodes or human rights violations, while remaining blind to the structural causes of human rights abuse and denial.7Shivji, 50-53

Taken together, the effect of all of these characteristics and deficiencies of the dominant discourse contributes to ‘the production and reproduction of a human rights ideology which objectively buttresses the imperialist oppression of Africa on the one hand, and the authoritarian/military domination of its people on the other’.8Shivji, 53. As such, Shivji argues that human rights and human rights discourse, in their dominant rendering, are a barrier to the nascent democratic revolution necessary for the fundamental transformation of Africa.

Human Rights and Struggle

Shivji, however, does not stop with critique – cognisant of the important role human rights (in their natural rights rendering)9The argument Shivji rehearses is that from Hobbes and Locke onwards a particular conception of the natural rights of the atomised, utility maximising individual formed a central tenet of revolutionary bourgeois ideology, which was mobilised to disrupt and overthrow the old feudal orders of Europe. However, once the bourgeoisie were victorious, this same rights talk was demobilised and transformed into a formal, legal legitimation of existing property and power relations. Shivji 45-50; and see Eugene Genovese, Roll, Jordan, Roll (Vintage Book, 1976) 44-47. played in mobilising the earlier bourgeois revolutions of the 18th and 19th centuries, and the ideological cachet of human rights in the present, Shivji insists that ‘there is a need to build a new perspective of human rights in Africa’.10Shivji, 69. At this point, Shivji shows an acute awareness of the need to connect theory with practice, noting that ‘this reconceptualisation is obviously a process involving constant interaction between the struggles of the African people and activists’.11Shivji, 69.

So, while it is not possible to articulate a full blown reconceptualisation of human rights ‘at a stroke’, the preceding critique of the dominant discourse ‘provides some elements or building blocks for beginning to erect a new perspective’.12Shivji, 69. Central to Shivji’s critique of the dominant human rights discourse is that it divorces human rights from concrete history, the role of imperialism and from the masses of African people as active subjects in their own life and history.

The central elements for Shivji’s rethinking of human rights flow directly from this – as such he identifies three key elements that must inform a revolutionary reconceptualisation of human rights in Africa. The first is that any account or theory must be ‘historically situated’ and grounded in a concrete analysis of the conjuncture, in the context of Africa this must emphasise that ‘imperialist domination of Africa, from colonial to neocolonial forms, constitutes the main point of departure for understanding the conditions of the African masses’. A new theory of human rights must ‘be thoroughly anti-imperialist, thoroughly democratic and unreservedly in the interest of the ‘people’’ (understood here as the mass of workers and peasants).13Shivji, 69-70.

The second key element of such a theory is that it must stress the centrality of class struggle in shaping and conceptualising human rights, as Shivji puts it:

the human rights ideology has to be appropriated in the interest of the people to play a mobilising role in their struggle against imperialism and compradorial classes and their state. Therefore, the new perspective must distance itself openly from imperialist ideology of human rights at the international level and cultural-chauvinist/developmentalist ideology of the compradorial classes, at the national level. This is the second element or building block in the new perspective.14Shivji, 70.

This latter point is crucial to Shivji’s account, as he understands that the contradictory role that human rights and human rights talk has played in the past (both subverting and legitimating the status quo) is the product not of unresolved intellectual abstraction, but the concrete product of class struggles.

The third element of Shivji’s reconceptualisation of human rights is an insistence that ‘new conceptualisation must clearly break from both the metaphysics of natural law as well as the logical formalism and legalism of positive law. It must be rooted in the perspective of class struggle’. This implies that rights, rooted in struggle and a revolutionary perspective, would not be primarily conceived as individual rights, but as collective rights of peoples; rights are not primarily conceived as legal entitlements, but ‘as a means of struggle, ‘right’ is therefore not a standard granted as charity from above but a standard-bearer around which people rally for struggle from below’; all of this, in turn, transforms the vocabulary of human rights so that

one does not simply sympathise with the ‘victims’ of human rights violations and beg the ‘violators’ to mend their ways in numerous catalogued episodes of violations; rather one joins the oppressed/exploited/dominated or ruled against the oppressors/exploiters/dominant and ruling to expose and resist, with a view ultimately to overcome, the situation which generates human rights violations.15Shivji, 70-71.

In line with Marx’s view of the role of critique being to find the kernel of the new in the old16Karl Marx, ‘Letters From the Deutsch-Französische Jahrbücher’ in Marx-Engels Collected Works: Vol. 3 (Lawrence & Wishart, 2010) 133, 142. Shivji’s reconceptualisation of human rights does not ‘begin from a clean slate’, but instead begins to sketch the elements of the new from his critique of the old.17Shivji, 72.

Another Way

Importantly, Shivji also illustrates that this theoretical difference is present in concrete terms in the contrast between the African Charter on Human and Peoples Rights, which for Shivji suffers from all of the maladies of the dominant account, with its ‘neo-colonialist statist disposition’, developmentalism and obeisance to a fictive international cooperation.18Shivji, 97. In stark contrast, Shivji invokes the Universal Declaration of the Rights of Peoples (or Algiers Declaration) of 1976, a document which is avowedly anti-imperialist and centred on the collective rights of oppressed peoples.

The Preamble to the Algiers Declaration, which Shivji quotes approvingly, recognises from the outset the ‘new forms of imperialism’ that have evolved to oppress and subjugate the peoples of the world, thus fundamentally undermining human rights. It sets itself against imperialism in all its forms, and provides support for ‘all those who, throughout the world, are fighting the great battle, at times through armed struggle, for the freedom of all peoples’, with the hope that people will ‘find in this Declaration the assurance of the legitimacy of their struggle’.19Universal Declaration of the Rights of Peoples (Algiers Declaration) 1976, Preamble.

Whereas the African Charter provides firm protection to private property, and in this way undercuts many of the other rights proclaimed in it as well as legitimating imperial relations of exploitation, the Algiers Declaration provides no such protection. This is crucially important, as Shivji notes, because a ‘careful reading of its provisions shows that it is clearly aware that private property, in this case particularly imperialist property, lies behind the system of underdevelopment and domination in the Third World’.20Shivji, 103.

In its explicit anti-imperialism, its rejection of the centrality of private property (the fundamental right par excellence of the bourgeoisie) and its foregrounding of the rights of collectives in struggle, the Algiers Declaration provides a concrete illustration of Shivji’s revolutionary and struggle centred reconceptualisation of human rights. As Shivji notes, the subsequent neglect of the Declaration speaks to the persistent ideological biases of human rights discourse rooted in the hegemony of imperialist ideology.21Shivji, 106. In the more than thirty years since Shivji produced this book the Algiers Declaration has remained a more or less forgotten moment in the history of anti-imperialist and radical critiques of imperialism and human rights, whereas the African Charter system has consolidated itself.22The Charter was adopted through intergovernmental negotiations under the auspices of the Organisation of African Unity (now the African Union), as such it has greater official/formal status from the outset, along with an increasingly robust enforcement mechanism – at present 53 African states have signed up to the Charter. In contrast the Declaration was adopted by activists and revolutionaries brought together by the Lelio Basso Foundation, in consequence it never enjoyed the same formal/binding character of the Charter – coupled with its radical political content this informality, along with the course of historical development in Africa and elsewhere over the last 40 years, has ensured the neglect of the Declaration to date.

Shivji’s Critique Today

As noted at the outset, critiques of human rights are commonplace today. Few, however, have the incisiveness or political relevance of the critique Shivji outlined in 1989. With a very few exceptions, the most notable being Radha D’Souza’s excellent recent book,23Radha D’Souza, What’s Wrong With Rights? (Pluto, 2018). few critiques of human rights seriously understand or attempt to engage with imperialism in any meaningful sense. Others are wrapped up in the critique of human rights as an idea, traversing the interesting terrain of intellectual history, but ending in political immobilisation and quietism.

In contrast, Shivji’s account foregrounds class antagonisms and class struggle in both how we understand the development and place of human rights in the world today, and how we might engage with human rights in movements for fundamental change. Imperialism remains the defining feature of our world system,24Utsa Patnaik and Prabhat Patnaik, A Theory of Imperialism (Columbia University Press, 2017). so when thinking about human rights it is crucial to avoid the pitfalls of abstraction, in its various forms, and foreground the role of contemporary imperialism in both reproducing human rights ideology, and structurally undermining the possibility of human rights protection – Shivji’s work provides an important lodestar and entry point in this regard.

Much like the Algiers Declaration, Shivji’s work has not received the attention that it merits. This is no doubt in part due to the very relationships of imperial and neo-colonial hierarchy that Shivji himself identified, but it is also because Shivji’s critique of human rights and attempt to reconceptualise human rights in the service of revolutionary struggles, is far less palatable than the petty bourgeois and pseudo radical critiques that leave the essence of imperialism and class struggle untouched.

His critique of human rights remains incisive and relevant, both in the context of the continued imperial plundering of Africa25Lee Wengraf, Extracting Profit (Haymarket 2018). and in light of the various social movements, such as Abahlali baseMjondolo in South Africa,26Nigel Gibson, Fanonian Practices in South Africa (Palgrave Macmillan, 2011) 144-180. that are engaging with human rights in subversive and imaginative ways. But its relevance goes far beyond Africa, and in an era of persistent capitalist crises and imperialist barbarism, Shivji’s work provides us with a starting point for thinking about and engaging with human rights without ‘mindlessly reproducing imperialist and neo-colonial ideological domination’.27Shivji, 110. A way of critiquing and engaging with human rights as if they really matter.

Paul O’Connell teaches law at SOAS, University of London and is a founding member of The Beehive in Manchester and the Political Education Project.

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Issa G. Shivji