Rights and the good life
Bacre Waly Ndiaye
The Islamic Institute of Civil Justice (‘the Institute’) exemplifies the important co-existence of different religiously-based legal institutions within a State, for the promotion of religious freedom and equality. If an alternative religious institution is developed compatibly with the public order of the State, the Institution can encourage the fulfillment of the religious groups’ cultural and religious beliefs, and promote equal religious recognition. The alternative institution will also enable the creation of a successful justice system based on voluntary access, ownership and respect for diversity. The existence of a legal entity based on a group’s cultural and religious principles allows that particular group to find creative solutions to legal questions that are appropriate and compatible with their faith and beliefs. This has particular potential to succeed within the context of the Institute because of the great value that Islam places on democratic participation and consultation regarding rules and decisions. Such a process allows the Muslim community in Canada to revisit traditional jurisprudence in light of their experience.
Given the ownership this arbitration system provides, the Institute will enable Muslim communities to come up with more successful and owned legal outcomes. However if decisions of the Institute body fully meet expectations of Canadian Muslim community, for instance through forward looking interpretation of Islamic law, this would encourage more and more Muslims to bring their litigations before it.
In Malaysia, for instance, Muslim women revisited traditional jurisprudence and interpretations in a way which highlighted many aspects directly linked to patriarchal bias, and allowed a different and feminist interpretation from the sacred texts. No one was able to demonstrate that their feminist interpretation did not conform to the sacred texts, thus eliminating the contradiction promoted by many traditionalists as well as by many feminists between Islam and the promotion of women’s rights.
The road to universality should come from within
Historically, universality was about a self proclaimed cultural superiority often backed by military and scientific superiority and imposed, nolens, volens, on cultures considered as backward. These “Inferior” or “has been” cultures were left with no option but to give up most of their identities, and follow the superior one. Colonial penetration of Africa during the 19th century, illustrates how western European culture considered as the only one able to carry universal values and referred to as “la” civilization, was used as justification for colonial wars officially aimed at bringing enlightenment or civilization to the “dark” continent.
Now, values should only be considered universal if they are or could be locally shared and owned by many cultures across the world. The claim of a value as ‘universal’ should be the result of thoughtful, engaged processes of inter-cultural consultation, in which local ownership of or identification with a particular value is made possible if not demonstrated. In my experience, it is through such dialogue that commonly held universal values and beliefs are often uncovered.
To give an example, in 1980 I was part of the group that set up an Amnesty International section in Senegal. During its establishment, the issue of the death penalty arose in our discussions. Some members were concerned that they could not work on this issue in a predominantly Muslim country. Others believed that Muslims, as a matter of principle, could not oppose the death penalty. Some others postulated that Amnesty International national sections in African and Muslim countries may eventually have a mandate excluding opposition to the death penalty thus allowing more popular support for freeing prisoners of conscience and opposing torture.
To find an equitable and workable solution to this dilemma, we consulted with a range of Islamic spiritual leaders, scholars and groups on their perspectives on the death penalty and its compatibility with Islamic faith. What we found was that while each group recognized that the death penalty was indeed prescribed in certain cases, they also placed important conditions on it. These conditions demonstrated a commonly held view on the superior value of life underlining the fact that the imposition of the death penalty represented an exceptional situation to be guided by strict laid down procedures.
During our consultations, the spiritual leaders of the Sufi Islamic brotherhoods told us that they believe that a person who kills can be killed as punishment. However they also quoted a verse from the Holy Koran according to which to kill unjustly is like to kill all human beings. Conversely, if you saved the life of one human being you would have saved all human beings. Consequently, they felt whenever there was doubt, the principle of the sanctity of life should prevail especially since human judgment and perfection do not match.
In the small Shi’a community, made up of Muslims originally from the Near East, the same conclusion was reached through highlighting the sanctity of life and the Koranic recommendation to the families of victims to prefer the “blood money” to taking the life of criminals. They also said that according to the Islamic tradition being unjust towards mankind was worst a sin than destroying the holy site of the Kabbah, the original temple of Prophet Abraham.
We also consulted some individuals known to support the establishment of a theocratic (Islamic) state in the country. We found that their preference for a theocracy was the outcome of their search for social justice and a pure and just organisation of the state and of society. This includes the sharing of wealth to alleviate poverty, the importance of democratic consultation in decision-making and the realization of human dignity through promotion of spiritual values. If a person committed a crime in a State that was not organised in the way prescribed by Islam and in which he or she was not enjoying the social and democratic values promoted by Islam, he or she should not be exposed to Islamic punishments. In other words why the sanction if the rule is not respected?
When we consulted some Islamic scholars, they said that they believed the death penalty can be requested, but they also expressed a clear preference for victims to take compensation rather than allow punishment, because they believed in the importance of saving lives. Moreover they drew attention to the belief that saving lives was rewarded without conditions, whereas taking lives was under the condition of total fairness which was difficult to measure as well as to achieve. Therefore saving the life of a death row inmate could be seen as an act of Islamic devotion especially where the fairness of the trial was doubtful.
This positive reference should not lead to the conclusion that the road leading to a shared approach to universality is linear. Set backs do exist and many paths are yet to be explored. The post-11 September 2001 context provides us with a number of challenges to human rights protection and respect for international humanitarian law under the guise of fighting the scourge of terrorism. Among them are the challenge to the absolute prohibition of torture, to protection against arbitrary arrests and detention, the undermining of the status of prisoners of war through the blurred and ill-founded notion of “illegal combatants”. In the same vein the right to asylum is denied through the notion of “illegal migrants”. Moreover universal respect for and enjoyment of human rights are being undercut. The idea that rights should be reserved to nationals and that foreigners have to deserve extension of this respect to them is spreading in countries hitherto considered as sanctuaries for freedom and democracy. So far none of the Western countries has signed one of the seven major United Nations human rights instruments: the Convention on the rights of migrant workers and members of their families. Denying human rights protection to foreigners when restrictions to circulation of goods and information are being lifted is a challenge both to universality and globalisation.
This being said, the way forward could still be found through revisiting the past. African society in the late 1970’s and early 1980’s was characterized by a lively debate about an African approach to human rights. Many political leaders were seeking to promote an African concept of human rights, with the understanding that it would justify attacks on freedoms and violations of individual rights in order to consolidate the foundations of economic take off and development. In other words, the rights of peoples should prevail over individual rights, and African solidarity in fighting an unjust world economic order should not be weakened by dissenting voices from within.
The African Charter on Human and Peoples Rights was a compromise between supporters of universal human rights and advocates of cultural specificity. The Charter reaffirmed universal human rights, recognized some collective rights such as the right to self determination and led to the recognition of the right to development. This right was reconfirmed by consensus in the 1993 Vienna Declaration and programme of action who’s Secretary General, Ibrahima Fall, was also one of the drafters of the African Charter.
In 1980 the Senegalese Bar Association hosted the constitutive meeting of the Inter–African Union of Lawyers, aimed at bridging the artificial divide between Franco-phone and Anglo-phone associations of African lawyers. In order to facilitate understanding between universality and cultural specificity and to provide the 1980 constitutive meeting of the inter-African union of lawyers with better tools for a consensus, the Senegalese Bar Association registered a well known historian to see if there were roots in west African thought for universal human rights standards. Very good examples of positive African traditions protecting for instance, the right of democratic participation or the right to freedom of expression were provided.
But the most interesting part of this study was the proposal to consider promoting adoption of new human rights standards based on African traditions. One right that was considered was the right to maternity based on the traditional concept according to which every woman is entitled to have a child. In circumstances where a woman does not have a child or is unable to bear one, her sister, or another female member of her family, a female friend, even her co-spouse, often gives her one of their biological children to raise as her own. This was quite a common practice amongst African communities and reveals the widely held belief in the entitlement of every woman to have children.
Another right in African cultures is the hard to translate right to pleasantries. When people from feuding or rival clans or ethnic groups meet, it is expected that they will exchange greetings that are critical and negate each other .The recipients are expected to take these greetings without offence and smiles if not laughs should end this kind of cultural contest. This practice is so widespread and so entrenched that it could be considered as a right in African communities as well as a powerful tool for the promotion of mutual tolerance.
In conclusion, universality is a never ending construction that both draws on and feeds into ideas, beliefs and values from all over the world. We must allow an increasingly global culture to arise from our differences.
Bacre Waly Ndiaye, 3rd June, 2005
