Accountability, Human Rights, and Human Dignity
If we understand constitutionalism as the limitation of political power for the protection of rights and liberties of the population, then sovereignty must be rooted in notions of human rights and human dignity to help achieve this objective.
However, while human dignity and human rights usually overlap and reinforce each other, dignity is not always taken to mean equal dignity for all human beings by virtue of their humanity as required by the concept of human rights. To the extent that this is true in a society, these two concepts would not readily provide coherent and categorical standards by which sovereignty is to be held accountable. Thus, differing understandings of these two concepts may yield contradictory standards of accountability where, for example, gender, religious, or ethnic differentiation are observed as expressions of human dignity, contrary to equality and nondiscrimination on such grounds as a human rights principle. In my view, however, such tensions and conflicts should be mediated with a view to mobilizing the moral and political force of both human dignity and human rights toward protecting the vital interests of individuals and communities. In striving to maintain, promote, and effectuate the international human rights system, a sufficiently broad and dynamic approach should be taken to address the combined concerns of these two concepts. This effort should neither confuse human dignity with human rights, if the two are perceived to be in conflict, nor undermine or weaken the existing normative and institutional strength of human rights.By the international human rights system I mean the complex and dynamic set of norms, institutions, mechanisms, and processes concerned with the promotion and protection of human rights at the intergovernmental level through the United Nations and regional organizations. Part of this system is what is sometimes referred to as the human rights movement, which consists of a wide variety of nongovernmental organizations, groups, and individual activists and scholars concerned with the protection and promotion of internationally recognized human rights.
The motivation and operation of the system and movement clearly overlap and interact, but it may be useful to maintain a distinction between the two.The term “human dignity,” in one form or another, appears in a variety of international documents and national constitutions, without authoritative definition or elaboration. While this is to be expected at this level, there is also little explanation of the term by way of jurisprudential and scholarly exposition, perhaps because its meaning is assumed to be self-evident or it has not been the subject of judicial deliberation as such. The presumably “intrinsic meaning [of human dignity] has been left to intuitive understanding, conditioned in large measure by cultural factors. When it has been invoked in concrete situations, it has been generally assumed that a violation of human dignity can be recognized even if the abstract term cannot be defined” (Schachter 1983: 849). Taking the word dignity in this general context to mean “intrinsic worth,” it follows that to respect a person’s human dignity is to treat her with proper regard for, or due recognition of, her intrinsic human worth, as an end, not as a means, that individuals are not to be perceived or treated merely as instruments or objects of the will of others.
This line of thinking leads to interpreting human dignity in ways that uphold the principles of a wide range of internationally recognized human rights, economic, social, and cultural as well as civil and political, while acknowledging a collective dimension to individual autonomy and choice. “The idea of human dignity involves a complex notion of the individual. It includes recognition of a distinct personal identity, reflecting individual autonomy and responsibility. It also embraces a recognition that the individual self is a part of larger collectivities and that they, too, must be considered in the meaning of the inherent dignity of the person” (Schachter 1983: 851–52). But the derivation of human rights from human dignity apparently favor a liberal view of rights as intrinsic to the person as an individual, beyond abridgment by the state or other authority, which may be problematic for other cultural or ideological traditions:
Respect for human dignity may be realized in other ways than by asserting claims of rights.
In many cases, the application of a “rights approach” to affronts to dignity would raise questions involving existing basic rights such as free speech. In other cases, respect for dignity may be more appropriately and effectively attained through social processes such as education, material benefits, political leadership and the like.... Informal channels for dealing with alleged affronts to dignity might be more suitable and effective than litigation in many cases. (Schachter 1983: 853–54)Accordingly, while some understandings of human dignity that may be seen as more readily in accord with international human rights norms, other conceptions might be quite different yet still being perceived as treating others with “proper” regard or “due” consideration. This contrast is to be expected because people and societies vary in their understanding of what is proper or appropriate in treating persons of different race, gender, religion, and so forth. The meaning of human dignity, in a practical concrete sense, can therefore be quite different, depending on the culture and context as well as the personal and psychological orientation of the person making the determination. According to Rhoda Howard,
The principle of human rights represents one particular way of looking at morality, justice, and human dignity.... Human Rights, in fact, imply a particular form of relation of the individual to society and the state that differs from what most cultures mean by human dignity... They are not merely a set of values expressed in religious or secular culture but also a set of rights that the law, government, and all other social institutions are organized to defend. (Howard 1995: 79)
In contrast, the social order of many cultures stratifies individuals and groups in ways that enhance dignity for some categories of people but leave other categories dishonored, without dignity or respect; some deserve honor, others do not. In most cultures, Howard emphasizes, “Most people’s claims, privileges, powers, and obligations (not human ‘rights’) are dependent on their social status, reflected in ascribed social roles” (Howard 1995: 63).
While I accept Howard’s main point about the relative meaning of human dignity, I would also note that various understandings of human rights are also conditioned by culture and context.
The present international concept of human rights evolved out of political struggles and intellectual developments within specific Western societies, though they began to be more globally accepted through a gradual process since the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. This evolving “universal” conception is still contested within Western societies (regarding economic and social rights, for instance) as it is among and within other societies. The significant point in my view is that concepts of human rights as well as human dignity are dynamic and open to adaptation to changing conditions in each society. I would therefore urge that the necessarily “relativist” origins of both concepts be openly acknowledged with a view to exploring or promoting more inclusive understandings of each concept, and in relation to the other.In other words, I am calling for mediation between two possible views regarding the relationship between human dignity and human rights in providing a normative framework for sovereign accountability. One view would subject conceptions of human dignity in all social and political life to liberal standards of individual human rights. The other would uphold traditional or communitarian conceptions of dignity, even where inconsistent with international human rights standards. The continuing challenge, it seems to me, is whether it is possible to sustain the conceptual and institutional integrity and efficacy of international human rights, which include collective as well as individual rights in my view, while striving to articulate and implement a supplementary paradigm for human dignity.
I have argued elsewhere for a deliberate process of internal discourse and cross-cultural dialogue to promote an “overlapping consensus,” drawing on John Rawls’s idea, over the universality of human rights, that is, to achieve greater acceptance and legitimacy for the same standards as applicable to all human beings, everywhere (An-Naʿim 1992).
This process should emphasize the shared need for the protection of human rights in all present state-societies, and draw on the possibilities of internal transformation within each cultural and religious tradition to uphold the same rights for all human beings. This is already happening, as culturally specific understandings of human rights are becoming increasingly accepted by diverse cultures and supported by their respective conceptions of human dignity. The same should be true for human dignity in relation to human rights. Since conceptions and implications of dignity in any culture are neither monolithic nor static, it should be possible to achieve an increasing degree of compatibility with human rights which are, in turn, also open to reconceptualization and adaptation in response to different contexts and challenges.This does not mean, however, that adjustment and adaptation should always be by transforming communitarian notions of dignity into individual human rights in the liberal sense, though that may well be necessary in some situations. Nor should this process seek to specify in detail how universal norms of human dignity and rights must apply in each society because there will always be need for adaptation and specification of broad formulations of norms to the concrete circumstances of time and place, local priorities, and so forth. Such adaptation and specification should, in turn, be evaluated in terms of agreed universal norms of human dignity, and may also give rise to ideas for refining and expanding the norms.
The main conclusion of this last section of the chapter is that respect for and protection of both human rights and human dignity should be part of the standards by which African constitutionalism should be evaluated. As emphasized in the preceding section, sovereignty should be a means to the end of realizing and safeguarding genuine and effective self-determination for all persons and groups, as well as the totality of population at large.
Notions of human rights and dignity can provide concrete standards for evaluating the constitutional experience of a country, though the precise meaning and application of these standards to any specific situation may require further clarification. As I have tried to show in the last section of this chapter, both human rights and human dignity are necessarily conditioned by cultural and contextual considerations everywhere, and for all societies, and not only in Africa or for African societies. This need for clarification and specification or adaptation is necessary and desirable from the perspective I am trying to advance through this analysis of African constitutionalism.In the first two parts of this chapter I attempted to highlight some of the precolonial and colonial resources from which present African societies could draw in developing their own modern constitutional experiences. In the third section I briefly examined the notion of sovereignty as a foundation and rationale of constitutionalism, and as such a standard by which particular constitutional experiences can be assessed. The last section discussed human rights and dignity as substantive content of the sovereignty standard of constitutionalism. All of these elements of African constitutionalism are tentative and contested, which makes their constitutional outcome contingent on a variety of factors. But it is not possible to determine such factors and their dynamic interaction in the abstract, without reference to particular historical context and specific demographic facts, political actors. To give a general sense of how such factors might work in one setting or another, I will attempt to further clarify this approach through a brief evaluation of the recent experiences of a few African countries in the next chapter. Although I will attempt to present those experiences as part of the process of “incremental success” of constitutionalism in those countries, more definitive conclusion will require much more detail and analysis than I am able to offer here.