Law Commons^™

The Ideology Of Human Rights, Makau Wa Mutua

Makau Mutua

This piece argues that although human rights is an ideology although it presents itself as non-ideological, non-partisan, and universal. It contends that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the construction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies. Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and the universality of human …

What Is Twail?, Makau W. Mutua

Makau Mutua

The piece seeks to conceptualize the insurgent movement in international law known as Third World Approaches to International Law. Driven by scholars from the Third World, TWAIL rejects the traditional tenets and assumptions of traditional international law and argues for a re-imagination of the law of nations to purge it of racial and hegemonic precepts and biases to create a truly universal corpus that embraces inclusivity and empowerment. The movement turns away from the imperialist and colonialist foundation of international law. It argues that international law must be devoid of oppression, exploitation, and domination. The piece is among the first …

What Is The Future Of Transitional Justice?, Makau W. Mutua

Makau Mutua

This piece explores and critiques the project of transitional justice. It has been more than a quarter of a century since transitional justice burst onto the global stage. Over the years it has come to be billed as a panacea for addressing deeply embedded social and political dysfunction after periods of mass repression and violence. Many theorists and policy makers have argued that it is a key bridge to sustainable peace, democracy and human rights. But the historical record is not clear about a direct causal relationship between transitional justice mechanisms and specific outcomes in post-conflict societies. In some cases, …

Standard Setting In Human Rights: Critique And Prognosis, Makau Mutua

Makau Mutua

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

The Banjul Charter And The African Cultural Fingerprint: An Evaluation Of The Language Of Duties, Makau Wa Mutua

Makau Mutua

No abstract provided.

Savages, Victims, And Saviors: The Metaphor Of Human Rights, Makau Mutua

Makau Mutua

This article critically looks at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors (SVS) construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one …

The African Human Rights Court: A Two-Legged Stool?, Makau Mutua

Makau Mutua

This article examines the African continental human rights system that is built on the African Charter on Human and Peoples’ Rights. It pays particular attention to the deficits of that system and argues that the establishment of the African Court on Human and Peoples’ Rights – a judicial body meant to strengthen the protection of human rights in Africa – falls far short. It exposes the normative and structural shortcomings that render the court virtually meaningless. It concludes that the court serves very little purpose except to address the enormous human rights challenges facing Africa.

The African Human Rights System: A Critical Evaluation, Makau W. Mutua

Makau Mutua

No abstract provided.

Just Back From The Human Rights Council, Makau Mutua

Makau Mutua

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could …

New Challenges To Southern Africa: From Regional Conflict To Internal Reconstruction, Makau Wa Mutua

Makau Mutua

With the possible exception of the Horn of Africa, arguably no other African region has been subject to multiple traumas such as those endured by Southern Africa. From the brutal Portuguese colonization to the vicious civil wars in Angola and Mozambique, not to mention the ravages of apartheid in South Africa and Namibia, the last four hundred years have seen sheer brutality of man over fellow man. Since 1990, however, there has been a steady reversal of the conditions that have historically caused violence in the region. In this article, the author examines this legacy and the struggle to construct …

Never Again: Questioning The Yugoslav And Rwanda Tribunals, Makau Mutua

Makau Mutua

Fifty years after Nuremberg, the international community has again decided to experiment with international war crimes tribunals. The stated purpose for the establishment of both the Yugoslav and Rwanda Tribunals by the United Nations are to “put an end” to serious crimes such as genocide and to “take effective measures to bring to justice the persons who are responsible for them.” This piece argues that both assumptions are unrealistic and that such tribunals will have little or no effect on human rights violations of such enormous barbarity. In addition, this piece questions the motivations behind the formulation of the tribunals …

Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey (Book Review), Makau Mutua

Makau Mutua

This review of Mary Dudziak’s hugely important book contends that the author conflates the struggle for civil rights in the United States with the struggle for black majority rule in Kenya. While the two struggles are linked by white domination and the quest for blacks to free themselves from that domination, the book fails to interrogate and contextualize the limitations of equal protection norms for minorities in two vastly different political milieus. Dudziak does not problematize Thurgood Marshall’s blind insistence that the independence Kenyan constitution accord the economically dominant and oppressive white minority in colonial Kenya the same equal protections …

Jeremy I. Levitt's Africa: Mapping New Boundaries In International Law (Book Review), Makau Mutua

Makau Mutua

This is a review of Jeremy Levitt’s edited collection of chapters in Africa: Mapping the Boundaries of International Law, which is an impressive work to the dearth of scholarship on Africa’s contribution to the normative substance and theory of international law. The book explicitly seeks to counter the racist mythology that Africans were tabula rasa in international law. In his own introduction to the book, Levitt makes it clear that “Africa is a legal marketplace, not a lawless basket case.” The eight contributors to the book are renowned scholars who make the case that Africa is not stuck in pre-history …

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Makau Mutua

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.

J. Shand Watson's Theory And Reality In The International Protection Of Human Rights (Book Review), Makau Mutua

Makau Mutua

No abstract provided.

Human Rights International Ngos: A Critical Evaluation, Makau Mutua

Makau Mutua

Published as Chapter 7 in NGOs and Human Rights: Promise and Performance, Claude E. Welch, Jr., ed.

The Human rights movement can be seen in a variety of guises. It can be seen as a movement for international justice or as a cultural project for “civilizing savage” cultures. In this chapter, I discuss a part of that movement as a crusade for a political project. International nongovernmental human rights organizations (INGOs), the small and elite collection of human rights groups based in the most powerful cultural and political capitals of the West, have arguably been the most influential component of …

African Human Rights Organizations: Questions Of Context And Legitimacy, Makau Mutua

Makau Mutua

Published as Chapter 13 in Human Rights, the Rule of Law, and Development in Africa, Paul Tiyambe Zeleza & Philip J. McConnaughay, eds. The human rights movement is largely the product of the horrors of World War II. The development of its normative content and structure is the direct result of the abominations committed by the Third Reich during that war. Drawing on the Western liberal tradition, the human rights movement arose primarily to control and contain state action against the individual. It is ironic that it was the victors of the war, most of whom held colonies in Africa, …

Critical Race Theory And International Law: The View Of An Insider-Outsider, Makau Mutua

Makau Mutua

This article contends that international law, like national law, is captive to the racial biases and hierarchies that hide injustice under the pretext of legal neutrality and universality. It argues that international law is tormented by racist and hegemonic asymmetries that govern the international order. The piece posits that international law could benefit greatly from the method of critical race theory in unpacking the pathologies of power and race that define it. It focuses on the use of international law to conceive and buttress the exploitation and marginalization of the North by the South. It calls for a reconstruction of …

An Apology For A Pathological Brute (Reviewing Tim Jeal, Stanley: The Impossible Life Of Africa's Greatest Explorer (2007)), Makau Mutua

Makau Mutua

This is a review of Tom Jeal’s Stanley: the Impossible Life of Africa’s Greatest Explorer. Although perhaps the most carefully researched of the many books of Stanley, the book suffers from its zealous attempt to absolve Stanley of his inhumanity in spite of the most extensive historical evidence of the abominations that he committed against Africans. Instead, Jeal sets out to humanize a historical monster who paved the way for many pogroms committed by the colonial hegemons in Africa. Even deep flaws of character, including self-denial, that were so evident in Stanley are either explained away or excused. The book …

A Critique Of Rights In Transitional Justice: The African Experience, Makau W. Mutua

Makau Mutua

Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were …