Human rights: southern voices Francis Deng, Abdullahi An-Na'im, Yash Ghai and Upendra Baxi.

• Author: Twining, William

Abstract

In the context of 'globalisation,' Western jurisprudence has largely ignored non-Western viewpoints, interests, and traditions. This article takes a modest step towards de-parochialising our juristic canon by introducing writings about human rights of four 'Southern' jurists: Francis Deng (Southern Sudan), Abdullahi An-Nai'im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). All were trained in the common law and have published extensively in English, so their work is readily accessible, but their perspectives show some striking differences. Deng argues that traditional values of the Dinka of the Southern Sudan are basically compatible with the values underlying the international human rights regime. For An-Na'im, a 'modernist' interpretation of Islam is mostly reconcilable with international human rights, but acceptance of such ideas depends far more on conversations within Islam than on cross-cultural dialogue of external efforts. Ghai questions claims to universal human rights; however, from his materialist stance and his experience of postcolonial constitution-making, human rights discourse can provide a framework for negotiating settlements in multi-ethnic societies. Baxi argues that as human rights discourse is professionalised or hijacked by powerful groups, it risks losing touch with the suffering and needs of the poor and the oppressed, who are the main authors of human rights.

Keywords:

An-Na'im, Baxi, Deng, Ghai, Human Rights, Pluralism, Southern Jurisprudence, Universalism.

1. Introduction

   In Ahdaf Soueif's novel, The Map of Love, an Egyptian woman, Amal, is expecting an American visitor: 'Wary and weary in advance: an American woman--a journalist, she had said on the phone. But she said Amal's brother had told her to call and so Amal agreed to see her. And braced herself: the fundamentalists, the veil, the cold peace, polygamy, women's status in Islam, female genital mutilation--which would it be?' (1)

   Amal is a cosmopolitan scholar, who moves easily between the worlds of Cairo, New York, and Europe. She is weary of the simplistic repetitious stereotyping of Egypt, Arab culture, and Islam by Westerners. Western normative jurisprudence faces similar charges of a repetitious parochialism about its agenda and about the bearing of other traditions on normative questions.

   Western jurispudence has a long tradition of universalism in ethics. Natural law, classical utilitarianism, Kantianism, and modern theories of human rights have all been universalist in tendency. But nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias. How can one seriously claim to be a universalist if one is ethnocentrically unaware of the ideas and values of other belief systems and traditions?

   As the discipline of law becomes more cosmopolitan, it needs to be backed by a truly cosmopolitan general jurisprudence. (2) My objective here is to make a small contribution to this cause by exploring the work of four non-Western jurists who are from 'the South' and who have made substantial contributions to the theory and practice of human rights: Francis Deng (Sudan), Abdullahi An-Na'im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). I shall finish with some remarks on why I have selected these four individuals, who else might have been included, the similarities and contrasts in their perspectives, in what sense they can be claimed to be 'voices' from or of the South, and their relationship to some familiar strands in Western liberal democratic theory.

   Since my immediate objective is to make the views of these four jurists better known, I shall try to provide a clear and fair exposition of their ideas about human rights, based on a finite number of accessible texts. This is part of the larger enterprise of deparochialising our own traditions of jurisprudence at a time when we need to take seriously the implications of the complex processes of globalisation for our understanding of law.

   Let me begin with a brief overview of the four individuals, each of whom emphasises seemingly different aspects of 'voice.' Francis Deng, justifiably, claims to speak for the traditions and culture of his own people, the Ngok Dinka of Kordofan in the Sudan. He argues that traditional Dinka values are basically compatible, in most respects, with the values underlying the Universal Declaration of Human Rights (3) and related international conventions and declarations. Abdullahi An-Na'im argues that a 'modernist' interpretation of Islam involves ideas that are, for the most part, similarly reconcilable with international human rights ideas, but that acceptance of such ideas (their internalisation within Islamic belief systems) depends far more on conversations and debates within Islam than on cross-cultural dialogue, let alone external attempts at persuasion or imposition. Yash Ghai is skeptical of most claims to universality that are made for human rights; however, adopting a pragmatic materialist stance, he reports that he has found through practical experience of postcolonial constitution making that human rights discourse provides a workable framework for negotiating political and constitutional settlements among politicians and leaders claiming to represent different majority, minority, and ethnic interests in multi-ethnic societies. Such discourse also facilitates popular participation in constitutive processes. Upendra Baxi argues that as human rights discourse becomes commodified, professionalised by technocrats, and sometimes hijacked by powerful groups, it is in grave danger of losing touch with the experience of suffering and the needs of those who should be the main beneficiaries--the poor and the oppressed. They are the main authors of human rights. To take human rights seriously is to take suffering seriously.

   All four have been activists as well as theorists, but in different ways. Francis Deng has had a very distinguished career in international diplomacy. Abdullahi An-Na'im has been a human rights activist within the Sudan and several other countries, and a publicist for human rights internationally. Yash Ghai has played a major role in post-independence constitution making and reform, especially in the South Pacific and Kenya. Upendra Baxi has been an influential publicist and campaigner in India and on the international stage, as well as serving as vice-chancellor of two Indian universities. For the last twenty years, he has campaigned and litigated on behalf of the victims of the Bhopal disaster.

2. Francis Madeng Deng (4)

   God asked man, "Which one shall I give you, black man; there is the cow and the thing called 'What,' which of the two would you like?" The man said, "I do not want 'What.'" God said: "But 'What' is better than the cow!" God said, "If you like the cow, you had better taste its milk before you choose it finally." The man squeezed some milk into his hand, tasted it, and said, "Let us have the milk and never see 'What.'" (5)

   What you have said, you Mading, we are very pleased. Things we have told you, you will give them a purpose; you will write them down and that is a big thing ....

   If this machine of yours writes and records what a man really says, and really records well, then if what we have said is bad, it will search for our necks; if it is good, then we will say these words have saved our country. Now we have trusted you ... we trust in you fully. Whatever you think we have missed, whatever you think we should have said that we missed, let it be said that we are the people who said it. (6)

   Francis Mading Deng was born in 1938 near Abyei in Kordofan in the west of the Sudan. His father, Deng Majok, was paramount chief of the Ngok Dinka, the only Nilotic inhabitants in the Northern Sudan. It is commonly said that 'Abyei is to the Sudan as the Sudan is to Africa,' a bridge between the African and Arab worlds. Deng Majok was an outstanding tribal leader, a national figure, especially prominent for his bridging role between the Arab north and the Nilotic south. He was also known as the creator of a huge family through marrying more wives than any other man in Dinka history. Francis, one of his senior sons, became both the leading interpreter of Dinka tradition and a committed proponent of human rights, maintaining that they are basically compatible. How could this be?

   Francis was the eldest son of Deng Majok's fourth wife. Although he did not groom any of his sons to succeed him, Deng Majok believed in education. The education of Francis Deng is a story of a remarkable journey through different cultures. It began in Deng Majok's compound in Abyei and continued in a boarding school for sons of chiefs run on similar lines to a British preparatory school. Francis Deng then proceeded to Khor Taaqqat, a secondary boarding school in the North, where the great majority of the boys were Muslims. He read law at the University of Khartoum, where he was taught in English mainly by expatriate teachers, including myself. The course was largely based on English law, but included an introduction to Shari'a law. Some attempt was made to discuss the role of customary law in the national legal system of the Sudan, but there was not sufficient literature to carry this very far. With encouragement, Deng spent some of his vacations studying customary law by sitting in his father's court, reading the court records, interviewing chiefs and elders, and starting a collection of recordings of several hundred Dinka songs. (7) This was the start of his very extensive explorations of Dinka traditions, culture, and law over many years.

   Francis Deng graduated with a good LL.B. in 1962 and obtained a scholarship to pursue postgraduate studies in London, where he...