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 AFRICAN HUMAN RIGHTS LAW JOURNAL

Who's watching 'Big Brother'?

Globalisation and the protection of
cultural rights in present-day Africa

Joe Oloka-Onyango*
Professor of Law; Director, Human Rights and Peace Centre (HURIPEC), Faculty
of Law, Makerere University, Kampala, Uganda
Globalisation has increased contacts between people and their values, ideas
and ways of life in unprecedented ways. People are traveling more frequently
and more widely. Television now reaches families in the deepest rural areas of
China. From Brazilian music in Tokyo to African films in Bangkok, to Shake-
speare in Croatia, to books on the history of the Arab world in Moscow, to
the CNN world news in Amman, people revel in the diversity of the age of
globalisation. 1

Summary
The forces of globalisation operate in a contradictory, oppositional and even
conflictual fashion. The results of the processes are mixed and varied. It is
against this background that the author examines the influence of globa-
lisation on the protection of cultural rights in Africa with the aid of analogies
drawn from the influence of the 'Big Brother Africa' reality show on the
African continent. The paper discusses the challenges posed by globalisation
to cultural rights in Africa. In discussing the African human rights regime in
relation to cultural rights, the author explores the role that can be played by
the African Commission on Human and Peoples' Rights and civil society in
preserving cultural rights. The author further highlights the interrelation
between culture, globalisation and women's rights and the need to promote
and protect the right to African traditional knowledge in a globalised world.
The author concludes by making a call that the category of primary duty

* LLB (Hons) (Makerere), LLM, SJD (Harvard), Dip LP (LDC); [email protected]. An

earlier version of this paper was presented to the Interights seminar on Economic,
Social and Cultural Rights under the African Charter, 13-17 September 2004 in
Pretoria, South Africa. I am extremely grateful to Rose Ssengendo for providing the
background research material for this study.
1 UNDP Human development report: Cultural liberty in today's diverse world (2004) 85;
http://hdr.undp.org/ reports/global/2004/ (accessed 28 February 2005).
2 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

bearers in the protection of human rights must be widened to include trans-

national corporations, families and communities over and above the state.

1 Introduction

At the time the invitation to this seminar was first sent to me in the
middle of last year, what appeared to be the whole of the African
continent was caught up in the throes of the reality TV show, Big
Brother Africa (BBA). 2 Following the format of the show elsewhere
around the world, 12 housemates, from 12 different countries and
walks of life, were secluded in a large house in an upmarket suburb of
Johannesburg, South Africa. With a hefty US$100 000 bounty as the
prize for the person who could outlast all the others in terms of their
popularity with housemates and viewers, the show pandered to the
voyeuristic element in humankind that has proven a great success in
the new genre of reality TV. However, the show came with a twist by
playing on the fact that the 12 housemates came from different parts of
the continent with ostensibly differing cultures, as opposed to sibling
shows elsewhere around the world in which all the participants came
from the same country. Few programmes in the history of television on
the continent have attracted such extensive viewership, with estimates
putting the figure at 30 million.
Correspondingly, few TV shows on any topic have generated as
much commentary and controversy. At least two African countries,
Malawi and Namibia, attempted to ban the show, while Zimbabwe
succeeded in removing it from state TV, but was unable to stop private
stations from screening it. In several other countries where the show
remained on screen, it provided much fodder for discussion by both
conservative politicians and radical Pan-Africanists, as much for fire-
breathing pastors and evangelists, as it did for academics and civil
society activists.3 The show even drew in African heads of state, with
Botswana's President Festus Mogae openly rooting for his country's
'representative' on the show, while eventual winner Cherise Makubale
from Zambia was appointed a cultural ambassador by President Levi
Mwanawasa. Uganda's Yoweri Museveni caused an uproar among poli-
ticians, evangelists and 'moral reformers' of various stripes when he not

2 The author was Special Rapporteur on Globalisation and Human Rights of the United
Nations Sub-Commission on the Promotion and Protection of Human Rights, for five
years (1999 to 2003), and much of the analysis in this paper is drawn from that
experience. In particular, see the three reports on the subject issued over the period,
namely I Oloka-Onyango & D Udagama The realization of economic, social and
cultural rights: Globalization and its impact on the full enjoyment of human rights,
preliminary report (E/CN 4/sub 2/2000/13); progress report (E/CN 4/sub 2/2001/10),
and the final report E/CN 4/sub 2/2003/14.
3 See eg 'Priest prays for Ugandan eviction' BBC News http://www.news.bbc.co.uk/2/
hi/africa/3146931.stm (accessed 28 February 2005).
WHO'S WATCHING 'BIG BROTHER'?

only met the 'notorious' Gaetano Kaggwa (Uganda's BBA representa-

tive) and his on-screen South African girlfriend Abigail Plaatjes, but also
offered
4
them his helicopter for a ride back to the capital after meeting
him.
Why all the hullabaloo? Taken at face value, BBA was simply another
show that happened to draw the attention of a great many people
because it tried something novel, and pandered to humankind's most
basic instincts, the desire to peek. Judging by the success of the show,
there is a Peeping Tom in every one of us. Viewed more critically,
however, the show provides considerable food for thought. Certainly,
the show raised many questions relating to how we view the issue of
culture in contemporary Africa. It also forced a consideration of the
manner in which the forces of globalisation - of which television has
become a most potent one - have come to affect the development
and expression of 'African culture' in the twenty-first century. When
translated to the African context, the notion of a 'Big Brother' -
drawn from George Orwell's classic satire about the omniscient state
- could be viewed as a metaphor for so many of the issues that arise
within current debates about globalisation: ideas about the loss of
sovereignty and identity, of the deluge of the indigenous by the for-
eign; of the one-sided nature of international transactions. Seen from
this angle, the show provides a useful commencement point for an
examination of the manner in which the contemporary forces of glo-
balisation have impacted on the promotion and protection of cultural
rights on the African continent.
For the purposes of this paper, the term 'culture' conveys at least two
meanings. First, culture may be defined as the '... integrated pattern of
human knowledge, belief, and behaviour...' which is dependent upon
the capacity of human society to learn and transmit knowledge about
their values, ideas and beliefs to succeeding generations. In other
words, culture may be taken to mean those elements that human
society produces in non-materialistic terms, and transmits to posterity.
A second definition of the term is more apt, namely the customary
beliefs, social forms and material traits of a racial, ethnic, linguistic,
religious or social group. 5 While recognising that definitional precision
is useful, at the same time it is necessary to be cautious about a dog-
matic approach to the notion of culture, and particularly to be sensitive
to expressions of diversity within culture. In other words, it may even be
an anomaly to speak of an African culture, given not only the diversities
across cultures, but those within, dictated by considerations of class,

4 Gaetano and 'Abby' had drawn the ire of most commentators because they allegedly
had sex in front of the cameras.
5 Both definitions are derived from the Merriam-Webster Online dictionary, at: http://
www.m-w.com (accessed 28 February 2005).
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

gender, ethnicity and even simple choice, to mention only a few. Cul-
ture should not be regarded as a closed box, but rather as an open and
broad canvas.
Globalisation is a process that simultaneously brings the countries
and peoples of the world closer together just as it pushes them further
apart, because it is possessed of qualities that both liberate and
empower, as much as it has qualities that marginalise and exclude
individuals, communities and whole countries from the benefits of the
global bounty. 6 Thus, globalisation has made the flow of capital, pro-
ducts, ideas, people, norms and values ever more rapid. It has made this
flow seemingly borderless, consequently among the most prevalent
descriptions of globalisation is that it has created a 'global village'.
The processes of globalisation often operate in contradictory, opposi-
tional and even conflictual fashion. In that regard, the result of these
processes has sometimes been positive, especially where it has led to
the liberation of oppressed individuals and communities. For example,
internet usage has enabled instantaneous and continent-wide appeals
against oppressive state practices. Each one of us has used the internet
to connect with sources of information that are empowering, that help
us do our jobs of promoting and protecting human rights better.
At the same time, many of the images portrayed through the inter-
net, on television or via the radio can be demeaning and disempower-
ing, even racist, thereby impugning the development of holistic notions
of an African culture or of African womanhood. 7 In this way, it has
wrecked many of what were once concentrated, deeply rooted and
positive African cultural values. Leaving aside the content of Big Brother
Africa, the show demonstrated how the media of television has become
such a dominant and powerful force for defining what should be
viewed as the province of the cultural. It also demonstrated (or rather
confirmed) the nearly exclusive single lane traffic of the forces of glo-
balisation: from the north to the south. One is hard put to think of any
recent screen depiction of events in the south that have had as pro-
found an influence on the media in the north. The problem is com-
pounded by the fact that depictions of the situation in the south are
typically designed by media houses in the north. Unfortunately, those
kinds of depictions are very often coloured by factors of race, perspec-
tive and bias. Very rarely do such depictions care to sensitively and
authentically portray the true image of those it is covering. 8

6 See World Commission on the Social Dimension of Globalisation A fair globalisation:

Creating opportunities for all (2004).
7 1Oloka-Onyango 'Globalization in the context of increased incidents of racism, racial
discrimination and xenophobia' E/CN 4/Sub 2/1999/8 para.1 5.
8 A great debate broke out when Prof Henry Gates produced a series on Africa in 2000.
Particularly vitriolic exchanges were made between Prof Ali Mazrui and Nobel prize-
winning author Wole Soyinka.
WHO'S WATCHING 'BIG BROTHER'?

But Big Brother Africa should also compel us to view the issue of
culture as something dynamic and evolving - a point that immediately
comes into tension with the idea that many of the commentators react-
ing to the show argued that the behaviours displayed were decidedly
'un-African'. Such a criticism is insufficient, because even if BBA was a
clone of those done elsewhere, it also elicited several dynamics that
differed from the shows conducted in other contexts, precisely because
it was placed in an African setting. At the same time, the show demon-
strated in stark relief the fact that the culture of the contemporary youth
is quite distinct from that of their parents. Conversely, criticisms of the
show cannot simply be dismissed as the loud cries of defensive conser-
vatives: a marriage between the African 'Moral Majority' and neo-Ras-
tafarians. Rather, they also reflected a genuine fear over the adoption of
foreign (read 'Western') social values, and correspondingly of the threat
posed to the positive attributes of African culture posed by the forces of
globalisation represented by Western TV. These criticisms should also
force us to inquire how the rest of the continent would consider some
of the practices displayed on the show. Given that the majority of the
continent's people are rural based peasants, to what extent are the
cultural practices in that sphere given due cognisance and respect by
the forces of globalisation?
The title of this paper is thus chosen to capture the multi-edged
meanings of the term 'Big Brother' and of the show, and to explore
its link to the processes of globalisation and to the notion of cultural
space. First, it is to convey a sense of the manner in which the forces
and processes of globalisation have come to influence the discussion
about the promotion and protection of cultural rights today, whether
we are speaking about language, dress, music, literature or dance. Sec-
ondly, it is to sound a caution against a dogmatic approach to the
notion of culture and its contemporary expression in Africa. The caution
is issued, given that so many of the BBA participants were elevated to
super-hero status among the youth and even among the not so youth-
ful of their respective countries simply from being in the show. It is also
issued so that our interpretation of the notion of culture is at all times
subjected to critical interrogation. In other words, we need to be awake
to the question: What is African culture? And whose culture are we
talking about anyway?
Furthermore, we need to ask how the right to culture should be
understood and protected in a fashion that promotes the rich heritage
of the African condition, but also enables it to meet the challenges
presented by a globalised twenty-first century world that literally
'takes no prisoners'? Finally, we also need to find ways in which the
right to culture - especially of those peoples and communities that are
most threatened by the negative forces of globalisation - can be pro-
moted in such a manner that it does not foster discrimination, inequal-
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

ity or marginalisation. In this respect, issues such as the protection of

traditional knowledge (TK), the trade in cultural goods and the protec-
tion of rights such as those to food, to health and to the environment
are especially critical in the African context of the debate.

2 Cultural rights, globalisation and self-determination

Debating the nexus between globalisation and the right to culture

immediately brings to the fore the notion of the right to self-determina-
tion, whether in its economic or political expression. 9 The range and
impact of the forces of globalisation continue to have a profound effect
on life in the twenty-first century, and as such, no area of human exis-
tence has been left untouched by this phenomenon. Globalisation is a
process possessed of many attributes, and indeed, definitions given to
the phenomenon are to a large extent dependent on the angle of the
approach of the person seeking to define it. For example, Holm and
Sorensen define globalisation as 'the intensification of economic, poli-
tical, social and cultural relations across borders'. 10 Sholte refers to
globalisation as 'processes whereby social relations acquire relatively
distanceless and borderless qualities, so that human lives are increas-
ingly played out in the world as a single place'. 1 1 Yet another author
suggests that the world today can be characterised by 'the concurrence
of globalisation and marginalisation'. 12
The processes of globalisation - privatisation, deregulation and eco-
nomic liberalisation - have profound implications for the ability of
states and peoples to determine their economic and political destinies;
in a nutshell their rights to self-determination. The cultural influences of
globalisation - whether presented in the global media or via the
increase in consumerism - have profound implications for the protec-
tion and promotion of African cultures. When all these factors are taken
into account, we can arrive at the conclusion that globalisation has
brought tremendous benefits by way of scientific and technological
progress, the enhanced dissemination and circulation of information
and the increased social mobility of people. However, it has also led
to significant social and cultural dislocation, particularly in the develop-

9 See A Orford 'Self-determination after intervention: The international community and

post-conflict reconstruction' http://www.jeanmonnetprogram.org/seminar/03/Or-
ford-Chapter 4 final.rtf (accessed 28 February 2005).
10 H Holm & G Sorensen Whose world order? Uneven globalisation and the end of the Cold
War (1995), quoted by RJHolton Globalisation and the nation-state (1998) 11.
11 JA Sholte 'The globalisation of world politics' in D Baylis & S Smith The globalization of
world politics - An introduction to international relations (1997) 14.
12 A Aden 'No connection under this number: Africa and internet' (2000) 5 D & C
Development and Cooperation 24; http://www.inwent.org/E+Z/1 997-2002/
de5OO.5.htm (accessed 31 March 2005).
WHO'S WATCHING 'BIG BROTHER'?

ing areas of the world. Because television is an industry - albeit one

deeply connected to cultural constructions of society - it is thus impor-
tant to ask who owns and controls
13
this medium. As noted in the 1999
Human Development Report:
Weightless goods - with high knowledge content rather than material
content - now make for some of the most dynamic sectors in today's
most advanced economies. The single largest export industry for the United
States is not aircraft or automobiles, it is entertainment - Hollywood films
grossed more than $30 billion worldwide in 1997.
Such 'weightless goods' as the electronic media (from music to movies
to websites) have become an indispensable part of human existence in
the present century. Moreover, through the tremendous amounts of
capital that the captains of globalisation are able to mobilise, they also
control a substantive portion of the literary and artistic worlds, which in
turn have a great influence on both global and local culture. As the
1999 Human Development Report noted, 'Today's flow of culture is
unbalanced, heavily weighed in one direction, from rich countries to
poor.' 14 It is a singular task to counter-balance this flow, and also to
ensure that the rights of those most marginalised by these processes are
given greater protection. And yet, the percentage of any of these indus-
tries that is owned by individuals or corporate actors from the non-
industrialised part of the world is miniscule. We are consequently forced
to ask not only what the agents and instrumentalities of contemporary
globalisation are transmitting, but also how alternative messages and
images can be transmitted. In other words, how can the instrumental-
ities of globalisation be converted to the positive expression of the
cultural values of marginalised groups and individuals?
In seeking answers to this question, it is crucial to appreciate that the
processes of globalisation are not divinely ordained, nor are its basic
tenets foreclosed from negotiation. 'Globalisation is not a natural
event, an inevitable global progression of consolidated economic
growth and development. 15 We do not subscribe to the 'TINA syn-
drome', as in 'There Is No Alternative' to globalisation. Rather, it is our
view that the phenomenon of globalisation is the product of human
society, motivated by specific ideologies, interests and institutions. In
other words, globalisation has no a priori or inevitable existence inde-
pendent of the structures humankind has put in place. It then becomes
essential to encounter and engage globalisation while taking these fac-
tors into consideration. In this way, we can identify varied outlets for
negotiating and reviewing its terms and consequences. In doing so, we

13 UNDP Human development report (1999) 4.

14 As above.
15 BK Murphy 'International NGOs and the challenge of modernity' (2000) 10
Development in Practice 332.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

must ask ourselves what the possibilities and limitations presented by

globalisation are and how we can strategically and creatively engage
them, especially to enhance those aspects of African culture that are
positive, and to struggle against those which are not.

2.1 The human rights framework

Against the preceding background, we need to ask ourselves: Which
human rights framework is relevant to the debate about those aspects
of globalisation and the right to culture with which we are most con-
cerned? Several international instruments enshrine the right to culture
among their provisions, including the Universal Declaration of Human
Rights (Universal Declaration).
16
Article 27 of the Universal Declaration
stipulates as follows:
1 Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement
and its benefits.
2 Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
The International Covenant on Economic, Social and Cultural Rights
(CESCR) elaborates on this by enjoining states to take steps necessary
for the '... conservation, the development and the diffusion of science
and culture'. 1 7 Closer to home, the African Charter on Human and
Peoples' Rights (African Charter) speaks of the right to culture within
an omnibus provision that also refers to the rights of 'all peoples' to '....
their economic, social and cultural development with due regard to
their freedom and identity and in the equal enjoyment of the common
heritage of mankind'. 18 Thus, by combining the literal meaning of the
term culture with its expression within international instruments, the
parameters of the discussion become more definitive. A number of
other instruments refer specifically to the right, either within the con-
text of particular categories of people, or in relation to international
cooperation, education, and development. 19 The United Nations Edu-
cational, Cultural and Scientific Organisation (UNESCO) is the world
body designated with the task of ensuring that cultural rights are

16 http://www.un.org/Overview/rights.html (accessed 28 February 2005).

17 See art 15 of CESCR, http://www.unhchr.ch/htmI/menu3/b/a-cescr.htm/ (accessed
28 February 2005).
18 See art 22 of the African Charter, http://wwwl.umn.edu/humanrts/instree/zlaf-
char.htm (accessed 28 February 2005); also reprinted in C Heyns (ed) Human Rights
Law in Africa (2004) 134
19 Eg, see the Declaration of the Principles of International Cultural Co-operation
proclaimed by the General Conference of UNESCO (4 November 1966) and the
Declaration on the Right to Development (GA Resolution 41/128 of 4 December
1986).
WHO'S WATCHING 'BIG BROTHER'?

given due recognition and respect, and in this respect it 20 in 2001 pro-
mulgated the Universal Declaration on Cultural Diversity.
Besides recognising the individual right to culture, article 15 of CESCR
provides for everyone's right to enjoy the benefits of scientific progress
and its applications and to benefit from the protection of their scientific,
literary or artistic works. Much of what could be described as the 'scien-
tific world' today is brought about by the processes of globalisation. In
particular, information and communications technology (ICT) is the
most visible face of globalisation that we know.
The following is a framework that emphasises four key platforms
upon which the discussion of the link between human rights and the
processes 2of1
globalisation and its impact on the right to culture should
be based:
1 The International Bill of Human Rights, comprising the Universal
Declaration and the International Covenant on Civil and Political
Rights (CCPR), together with CESCR;
2 Regional and sub-regional initiatives and contexts that are having
an increasingly important role to play in the debate on both the
processes of economic liberalisation and the promotion and pro-
tection of human rights. These include the African Charter and the
many instruments of the sub-regional groups (SADC, ECOWAS
and the EAC) which are cropping up around the continent;
3 More recent instruments designed to address the situation of spe-
cial groups marginalised by history or status such as those on
women, indigenous peoples and minorities. The Protocol on the
Rights of African Women is a prime example of this; and
4 The right to development - encompassed in the 1986 Declara-
tion but further enunciated at a number of world conferences,
commencing with the World Conference on Human Rights in
Vienna in 1993, stemming from which has been derived the
notion of the indivisibility, interconnectedness and interrelated-
ness of all categories of human rights.
This framework enables us to review how the processes of globalisation
have had a tremendous impact on both the processual and the sub-
stantive content of the different human rights that have been elabo-
rated over the past half-century, whether in treaties or under the rubric
of customary international law. It allows us to establish how the right to

20 http://www.cesmap.it/ifrao/unescode.htm (accessed 28 February 2005). The adop-

tion of the Declaration was specifically linked to the challenges presented by the
'growing pace of globalisation'. See Report of the 166th session of the Executive
Board of UNESCO, 12 March 2003, http://unesdoc. unesco.org/images/0012/
001297/129718e.pdf (accessed 28 February 2005).
21 See E/CN 4/sub 2/2000/13 (n 2 above) and I Oloka-Onyango & D Udagama 'Human
rights as the primary objective of international trade, investment and finance policy
and practice' working paper submitted to the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, E/CN 4/sub 2/1999/11.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

culture is articulated in these instruments and the ways in which that

right is best promoted and protected.
From a human rights perspective, therefore, our main concern must
be with the profound consequences that globalisation has produced or
enhanced and the way in which these relate to the overall promotion
and protection of the right to culture in Africa. While understanding
that human rights is an important tool for the liberation of individuals
and peoples around the world, the project by which it has been defined
is oftentimes rather narrow, and it is thus important to also problema-
tise what can be described
22
as the human rights project. As Makau
Mutua has argued:
The transplantation of the narrow formulation of Western liberalism cannot
adequately respond to the historical reality and the political and social needs
of Africa. The sacralisation of the individual and the supremacy of the jur-
isprudence of individual rights in organised political and social society is not a
natural, 'transhistorical' or universal phenomenon, applicable to all societies,
without regard to time and place. The ascendancy of the language of indi-
vidual rights has a specific historical context in the Western world. The rise of
the modern nation-state in Europe and its monopoly of violence and instru-
ments of coercion gave birth to a culture of rights to counterbalance the
invasive and abusive state.
How has the human rights regime come to the rescue of those who
have been most adversely affected by the processes of globalisation?
How have African peoples benefited from all the spectacular develop-
ments heralded by globalisation? To what extent have the processes of
globalisation protected women, children, minority and indigenous peo-
ples, and other marginalised and vulnerable communities from the
ravaging despoilation of their cultures? Finally, are those institutions
- whether local, national, regional or international - tasked with
the function of protecting human rights equipped with the tools neces-
sary to meet the challenges posed by the varied processes of globalisa-
tion? As we review the global communications and technological
developments heralded by those who can only see the bright side of
globalisation, African peoples need to explore further the negative
effects that continue to threaten the existence of those cultures that
are positive.
2.2 Understanding globalisation as a socio-economic and cultural
force
A quick look at the statistics of economic growth and development in
the world today clearly demonstrates that while one section of human-
ity is growing and developing - literally basking in the glow of globa-
lisation - the other wallows in increasing despondency and despair. In
other words, the processes most closely associated with globalisation

22 M Mutua Human rights: A political and cultural critique (2002).

WHO'S WATCHING 'BIG BROTHER'?

are rife with contradiction.23 For example, globalisation has broken

down many of the social and cultural barriers that have traditionally
stood in the way of increased harmony among the peoples of the
world. The global spread of music, literature and dress styles (to men-
tion a few), coupled with the increased use of 'global' languages like
English and French, have seen people from vastly different parts of the
world still find several areas of common interest. Thus, in spite of the
different countries from which the Big Brother Africa contestants were
drawn, they shared much more in common than what would appear
on first sight to hold them apart, among those commonalties being a
love for Nike shoes, Levi jeans and rap music, influences which could be
described as 'benign'. 2 4
On closer scrutiny, however, one cannot fail to observe the margin-
alising contradictions that the processes of globalisation have cut
through national cultures, particularly those of the African people. Con-
necting the rise of Shari'a militancy in Northern Nigeria in part to the
growing influence of globalisation, Ali Mazrui has argued that '[o]ne
of the repercussions of globalisation is that it both promotes enlarge-
ment of economic scale and stimulates fragmentation of ethnic and
cultural scale'. 25 People are forced into their ethnic and cultural
cocoons so as to fend off the emasculating forces of globalisation. A
collapse is then quickly made between culture and tradition, the latter
being the dogmatic and unwavering defence of inherited and time-
honoured practices and principles regardless of what impact they
have on society. In sum, having lost everything else, tradition becomes
the last preserve of one's humanity. At the same time, it is important
not to seek an explanation for every negative reaction in things tradi-
tional; even tradition (or the claim about its supremacy) does not exist
independently of the economic, the social and the political.26 More-
over, the choice of which tradition to valorise and uphold is a very

23 Othman & Kessler argue that globalisation processes ' ... do not together add up to
any simple, obvious, natural, irresistible good ... They may just amount to a very
mixed, contingent, jumbled and mutable 'package': One whose various contents may
change in intensity and even character, independently of one another, over time.'
N Othman & C Kessler 'Capturing globalisation: Prospects and projects' (2000) 21
Third World Quarterly 1025.
24 The UNDP describes these as 'global brands' in demand, especially among 'global
teens' who '... inhabit a "global space", a single pop culture world, soaking up the
same videos and music and providing a huge market for designer running shoes, T-
shirts and jeans'. See UNDP (n 1 above) 87.
25 A Mazrui 'Shari'acracy and federal models in the era of globalisation: Nigeria in
comparative perspective' paper presented at the International Conference on the
Restoration of Shari'a in Nigeria: Challenges and Benefits, London, 14 April 2001 3.
26 This is a caution most recently articulated by Mahmood Mamdani in his book on the
social and political roots of global terrorism. See M Mamdani Good Muslim, bad
Muslim: America, the Cold War, and the roots of terror (2004).
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

conscious political process that often serves to reinforce patriarchy and

conditions of discrimination.
In so far as the African situation is concerned, the effects of globalisa-
tion have largely been lopsided, with a greater tendency to suppress
rather than to liberate or emancipate. In my view, this is because glo-
balisation in its contemporary expression essentially represents corpo-
rate culture - the culture that puts profit above every other human
value, and a culture concerned much more with form than it is with
substance. The advertisement for the soft drink Sprite tells it all: 'Thirst is
nothing; image is everything!' Corporate culture is not concerned with
detail, but the bigger picture; let the world grow richer. Corporate
culture is not concerned with who is benefiting from this largesse, or
even how that bounty is distributed. It is in this regard, in particular,
that the Big Brother Africa show raises fundamental questions about
whether globalisation is a force for good or otherwise. This is a point to
which we now turn.

3 The challenges of globalisation to cultural rights

The broad focus of the preceding sections of the paper allows us to nar-
row our lenses somewhat to the challenges presented by the processes of
globalisation to the promotion and protection of cultural rights within the
African context. In so doing, it is important to make the preliminary point
that, in many respects, the right to culture encompasses and impacts on
many related rights. For example, cultural or traditional knowledge (TK)
and its exploitation or misappropriation have implications for the right to
health and the right to food, not to mention the right to an adequate
standard of living. The protection of the right to a healthy environment is
obviously threatened by actions to exploit minerals and other natural
resources, actions which have the consequence of disrupting communal
life. At the same time, the connection between the land in which these
resources are found and the people that live there have profound cultural,
religious and spiritual implications. Threats to language will have implica-
tions for the right to freedom of expression and also for the right to
education. The right to learn and use the language of one's choice is a
basic human right.27 In other words, the interconnectedness of cultural
rights is legion. Dinah Shelton has argued that globalisation can affect
cultural and linguistic28rights, although the evidence seems contradictory,
in that globalisation:

27 See art 2 of the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, http://www.unhchr.ch/html/menu3/b/dminor-
i.htm (accessed 28 February 2005).
28 D Shelton 'Protecting human rights in a globalised world' (2002) 25 Boston College
International and Comparative Law Review 297.
WHO'S WATCHING 'BIG BROTHER'?

... facilitates the transfer of cultural manifestations and cultural property. A

study by the UN Economic and Social Council (UNESCO) indicates that
commerce in cultural property tripled between 1980 and 1991 under the
impulse of satellite communications, internet and video cassettes. Yet in this
field, as in others, mergers and acquisitions have concentrated ownership to
the detriment of local industry. The Hollywood film industry represented
70% of the European market in 1996, more than double what it was a
decade earlier, and constituted 86% of the Latin America market. In the
opposite direction, traditional cultures across the world are being transmitted
and revived in multi-ethnic states through the movement of peoples, their
languages, and their beliefs.
But it is also important to remember that there are not only inequities in
the flow of cultural products, but also in the mechanisms of trade
liberalisation designed to manage them. Represented in the main by
the World Trade Organisation (WTO) and transnational corporations
(TNCs), these institutional mechanisms of globalisation are greatly
implicated in promoting the lopsided flow of goods and services,
including those of a cultural nature. Thus, whereas the WTO is pre-
sented as a bureaucratic or technocratic institution devoted only to
the promotion of economic objectives, it is in fact greatly influenced
by the political context in which it operates. 2 9 Practices that are con-
sidered anathema in countries in the south - protectionism, govern-
ment subsidies and state support to weak industries - are still widely
tolerated in the north, without any remorse or guilt over this duplicity.
An issue that has dogged the WTO since inception in 1995 has been the
provision of agricultural subsidies by the United States and the Eur-
opean Union to farmers who are clearly not competitive on the world
market. For example, in 2001 and 2002, American farmers received
cotton subsidies of US$4 billion for a crop worth only US$3 billion. In
spite of the commitment to development (including a pledge to sub-
stantially reduce or end subsidies to agriculture) made at the Fourth
Ministerial Meeting in the Qatari capital Doha, movement in this area
has been painfully slow. Although the WTO ostensibly operates on the
basis of consensus, powerful states are better able to exercise their
influence in determining trade policy and practice even if they are
numerically fewer. 30 Fresh attention will have to be paid to one of
the principle side effects of the processes of globalisation - the globa-
lisation of English as the international lingua franca. The international
communications industry that includes television, the internet, radio,
film and video, have promoted English as the language of communica-

29 For a critical analysis of the operations of the organisation, see BL Das The WTO and
the multilateral trading system: Past, present and future (2003).
30 Developing and underdeveloped countries have recently woken to the need to
challenge developed countries at their own game. Thus, Brazil successfully challenged
the United States on the issue of cotton subsidies. See 'Cotton subsidies must go'
(editorial) The New Vision 23 June 2004; http://newvision.co.ug/D/8/14/367775
(accessed 28 February 2005).
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

tion. The old saying 'a lost language is a lost culture; a lost culture is
invaluable knowledge lost' 31 is becoming a growing reality in Africa. In
Kenya alone, it has been observed in a report by UNESCO that 1 6 out of
Kenya's 42 languages are in serious risk of disappearing. 32 At the end of
the twentieth century, according to researchers at the Nigerian Centre
for Endangered Languages, out of 6 800 languages classified as threa-
tened, being spoken by roughly
O six billion people
33 around the world,
2 400 of them (35%) are indigenous to Africa. The consequences of
such a development in terms of promoting and protecting the right to
culture are indeed profound.
At the same time, it is important not to forget the way in which the
processes and instruments of globalisation have a positive effect on
culture and its expression, especially for the protection of the cultural
rights of minorities and indigenous peoples. For example, the internet
has been an essential tool of mobilisation and empowerment for con-
temporary civil society movements, whether for human rights, the pro-
tection of children or the environment. Consequently, the internet has
provided an immeasurable instrument of conscientisation and con-
certed civil society action. The immense power of this 'globalisation
from below' was apparent when civil society played a critical role in
ensuring that the Third Ministerial Meeting of the WTO in Seattle in
1999 was aborted. Despite the limitations in the scope and perspectives
of the global media, the fact that corporations like CNN and the BBC
are able to produce news in real time (and that they sometimes cover
issues relating to endangered peoples and the illicit practices of TNCs) is
certainly a positive development attributable to globalisation. Such
power should not be underestimated.
But in order to fully understand the implications of these develop-
ments, we need to turn to an examination of the way in which they
have been played out within the African human rights context. In so
doing, we need to concretely tackle the issue of the promotional, pro-
tection and enforcement roles of the African Commission on Human
and Peoples' Rights (African Commission) in dealing with the phenom-
enon of globalisation and guardianship over the right to culture.

3.1 Revisiting the role of the African human rights regime in

relation to cultural rights
African governments have devoted considerable attention to the articu-
lation of the right to culture, and have in some instances drawn criti-
cism for doing so. Such criticism has mainly been made over the African

31 See K Cheruiyot 'Our languages are dying' One World 24 February 2003, http://
www.globalpolicy.org/globaliz/cultural/2003/ 02241anguage.htm (accessed 28 Feb-
ruary 2005).
32 As above.
33 As above.
WHO'S WATCHING 'BIG BROTHER'?

Charter. It has also been made with regard to instruments like the more
recent African Union Model Law for the Protection of Local Commu-
nities Farmers and Breeders and the Regulation of Access to Biological
Resources - an instrument designed to protect and enhance Africa's
biodiversity from indiscriminate corporate exploitation, and to secure
farmers' rights. 34 The latter instrument is Africa's response to the loop-
holes in the Agreement on Trade Related Aspects of Intellectual Prop-
erty Rights (TRIPS) with regard to the protection of traditional
knowledge and also as a counter-point to existing regimes of intellec-
tual property rights (IPRs) protection that give priority to plant breeders'
rights (PBRs) as opposed to the rights of farmers.35
The criticisms that have been made are largely on account of the fact
that the African Charter - perhaps more than any other international
human rights instrument - attempted to grapple with the tensions
introduced by the universalisation of human rights ideals, and their
practical enforcement within local contexts. In other words, the African
Charter straddles some of the most contentious issues in the discussion
about cultural relativism - the argument that challenges the local
application of ostensibly universal human rights standards. 36 The intro-
duction of the single word 'peoples' into the title of the instrument both
reflected and generated a considerable debate on the extent to which
the rights and interests of the individual should be subjected to the
welfare and cohesion of the community. 37 It continues to be an issue
of concern.
Article 1 7(2) of the African Charter confers the right on every indi-
vidual to freely take part in the cultural life of the community in which
they live. Article 1 7(3) calls upon all states to promote and protect the
traditional values recognised by the community. The right to cultural
development is guaranteed under article 22(1) of the same Charter. A
good number of the Constitutions of African states - among them

34 For an analysis of the rationale and contents of the law, see ]A Ekpere 'The African
Union model law for the protection of the rights of local communities, farmers and
breeders and the regulation of access to biological resources' in C Bellmann et al (eds)
Trading in knowledge: Development perspectives on TRIPS, trade and sustainability
(2003) 232-237.
35 The main international organisation that protects the rights of plant breeders is the
Union pour la Protection des Obtentions V~g6tales (UPOV), translated as the
International Union for the Protection of New Varieties of Plants. The Convention was
signed in Paris in 1961 and entered into force in 1968, and has been revised thrice
since (in 1972, 1978 and 1991). For a comprehensive analysis, see ICTSD/UNCTAD
Intellectual property rights: Implications for development (2003) 52-55.
36 For an analysis of the arguments on cultural relativism, see DL Donoho 'Relativism in

international human rights law' unpublished LLM dissertation, Harvard Law School, 1989.
37 For an articulation of the arguments surrounding how the issue of culture was
manifested in the Charter, see M Mutua 'The Banjul Charter and the African cultural
fingerprint: An evaluation of the language of duties' (1996) 35 Virginia Journal of
International Law 339.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

the Ethiopian, South African and Ugandan ones - recognise the

individual and the collective right to different forms of cultural expres-
sion, which can be extended to custom, language and religious prac-
tices.38 In other words, the issue of cultural expression is considered to
be fundamental. A more complicated issue is the way in which the
right should be protected, and especially how a balance should be
drawn between the protection of the right to culture and a host of
other rights. In particular, there have been tensions between the pro-
tection of what is argued to be a right to culture and women's human
rights - a point that we shall turn to later. For the present, it may be
most appropriate to examine the issue with regard to the implemen-
tation of the right in the African situation. This necessitates a look at
how the African Commission - the main institution for the promo-
tion and protection of human rights on the continent - has
approached the tensions generated by the forces of globalisation ver-
sus the protection of human rights.

3.2 The African Commission

A useful starting point for this analysis would be a recent case
decided by the African Commission which involved a number of
issues related to the definition of the term 'peoples' in the African
Charter and to the obligation of the state within the context of
globalisation. The decision in question is the case of SERAC and
Another v Nigeria. 39 The case involved an examination of the situa-
tion of human rights violations in the Niger delta, and is the perfect
case for a study of how the forces of globalisation impinge on the
protection of human rights. It will be recalled that disputes over the
exploitation of the oil resources of this region of Nigeria have been
of considerable duration. They culminated with the mid-1 990s
execution of poet and social activist Ken Saro Wiwa of the Move-
ment for the Survival of the Ogoni Peoples (MOSOP) by the Sani
Abacha military government. The petition brought to the African
Commission sought redress for the actions of the Nigerian govern-
ment (and private oil companies) in exploiting and damaging the
environment of the Delta. The petitioners argued that such exploita-
tion violated a host of economic, social and cultural rights, including
the right to housing, the right to food, and (most importantly for

38 See K Henrard & S Smis 'Recent experiences in South Africa and Ethiopia to
accommodate cultural diversity: A regained interest in the right of self-determination'
(2000) 44 Journal of African Law 17.
39 Communication 155/96. I have extensively examined this case elsewhere. See JOloka-
Onyango 'Reinforcing marginalized rights in an age of globalization: International
mechanisms, non-state actors, and the struggle for peoples' rights in Africa' (2003) 18
American University International Law Review 851.
WHO'S WATCHING 'BIG BROTHER'?

present purposes) the right - enshrined in Article 21 - of all peo-

ples to '... freely dispose of their wealth and natural resources'. 40
The African Commission largely agreed with the petitioners, making
orders as to what the Nigerian government had to do in order to
provide redress to the affected peoples.
The Commission's decision did not directly refer to the notion of
self-determination - in part a reflection of a degree of uneasiness
about the use of the term, given the volatility of issues relating to
statehood and sovereignty (often interpreted as secession) in the
African context.41 Indeed, a reading of the African Charter will reveal
a certain degree of coyness by its drafters in using terms such as
'minorities' or 'indigenous peoples'. 42 Neither did the Commission
consider the case as primarily one involving the protection of cultural
rights. However, a closer reading of the decision illustrates that, by
stating that the Nigerian government violated the rights of the Niger
Delta peoples, a critical advance was made with respect to the adop-
tion of a more holistic approach to the notion of peoples, and by
extension, to the protection of their cultural rights. By implication,
the case has fairly profound implications for the application of the
idea of the right to self-determination in the African context - the
right which we have argued to be at the foundation of all rights,
including the right to culture.4 3 The traditional point of view con-
siders the term 'peoples' as used in the African Charter to apply
principally to states, in the same way that 'self-determination' has
been applied only with regard to the principle of liberation from
colonial domination, or the external dimensions of self-determina-
tion.4 4 Put another way, the language of the Charter (and the initial
intent of its drafters, who were African heads of state) is very much
state-centred and patronising. For example, it is not by accident that
attention to the issue of minorities and indigenous persons in the

40 SERAC & Another v Nigeria, para 58.

41 There has only been one decision made by the African Commission on the issue of
self-determination, and the petition failed. See Katangese Peoples' Congress v Zaire
(2000) AHRLR 72 (ACHPR 1995). For a good examination of the various conceptions
of the term 'peoples', see RKiwanuka 'The meaning of 'people' in the African Charter
on Human and Peoples' Rights' (1988) 82 American Journal of International Law 80.
42 See NB Pityana 'The challenge of culture for human rights in Africa: The African
Charter in a comparative context' in MD Evans & R Murray (eds) The African Charter
on Human and Peoples' Rights: The system in practice, 1986-2000 (2002) 234.
43 n 42 above, 233-234.
44 See I Oloka-Onyango 'Heretical reflections on the right to self-determination:
Prospects and problems for a democratic global future in the new millennium'
(1999) 15 American University International Law Review 151.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

African context is only a recent, late-1 990s development.45 The SERAC

decision clearly demonstrates that the Commission was not shy to read
into the words of the Charter a meaning different from that traditionally
ascribed to them.
In other words, if we pursue the logic of the SERAC decision to its
rational conclusion, then minorities, indigenous persons and other cate-
gories of peoples who find no explicit mention in the African Charter,
but are the subject of considerable human rights violations - especially
with regard to matters of a social, economic and cultural nature - can
find redress. There is no reason to believe that such methods of analysis
cannot be applied to the realisation of the right to culture with respect
to a host of other issues in the African context. In an extensive article on
this issue, Barney Pityana (formerly a member of the African Commis-
sion) has argued that there is a need for the '... legitimising of all
cultures as sources of rights'. 46 And he continues: 'More importantly,
rights - or understandings of them - change and vary; they are
vibrant and dynamic.' Thus, in the context of globalisation, special
attention needs to be given to how best to protect those vulnerable
individuals, groups and communities from the adverse consequences of
globalisation. In the following section of the paper, we turn to a con-
sideration of how globalisation has come to play a critical role in both
the exploitation and the protection of indigenous peoples' traditional
knowledge and way of life.

3.3 Promoting and protecting the right to traditional knowledge

The Ogoni decision demonstrates that one of the most challenging
issues in the age of globalisation is the matter of how to deal with
the tensions generated by pursuing the goals of globalisation (liberal-
isation, privatisation and increased trade), and the protection of a host
of human rights, including the right to culture. As globalisation pro-
motes industries such as tourism, mineral extraction and forest and
other natural resource exploitation, the livelihoods and cultural mores
of many peoples in Africa are placed under threat. No other issue more
clearly illustrates these tensions than that between globalisation and the

45 The first time that the African Commission began to consider the issue of minorities
and indigenous peoples was at a meeting organised by the United Nations High
Commissioner for Human Rights. The result of the meeting was the Kidal Declaration
on Indigenous Peoples and Minorities (E/CN 4/Sub 2/AC5 2001/3) of January 2001.
That Declaration recognised the complexity of the concept 'minorities' and
'indigenous peoples' as applied in the African context; it encouraged further dialogue
on the subject and made several other recommendations. Soon thereafter, the African
Commission established a Working Group on the Rights of Indigenous Peoples and
Communities in Africa, whose final report will be reviewed at the next meeting of the
Commission.
46 See Pityana (n 42 above) 227.
WHO'S WATCHING 'BIG BROTHER'?

protection of the right to traditional knowledge, considered a critical

component of the right to cultural expression. According to Susan
Hawthorne, this has been 47
the natural progression of the capitalist sys-
tem of development:
Export for its own sake, as a prop to uphold a global economic system which
brings profit only to entrenched elites, also brings increased poverty, dispos-
session, dislocation and an imposed homogeneity of culture to the poor and
dispossessed. With each new period new forms of exploitation are invented
to maintain the access of capitalists to free resources. In the colonial era, it
was land and natural resources; in the post-colonial era the focus was on
cheap labour resources in agriculture and other areas of primary production
such as mining and forestry. In the era of globalisation the trend is toward the
exploitation of knowledge resources.
The WTO's TRIPS agreement (the instrument designed to provide
regimes of protection for IPRs) is of critical concern to an understanding
of how knowledge resources are affected by globalisation. 8 Although
part of the regime of trade liberalisation put in place under the WTO
agreements, TRIPS in fact runs in a direction entirely opposite to the
professed objective of the organisation. This is because TRIPS is quite
clearly an instrument of monopoly, with serious implications for the
rights to health and to food. 49 However, it came within the WTO frame-
work on account of the operation of large and influential transnational
corporations and the lobbying of their governments to ensure
increased protection for intellectual property rights.5 0 The film, music
and pharmaceutical industries were particularly influential in this
regard. In this respect, TRIPS is a major instrument in the universalisa-
tion and homogenisation of products and consumption patterns.
However, in furthering the protection of this category of rights, TRIPS
not only adopted developed country standards of protection and sought
to apply them to the rest of the world, but it made several additional
changes to the IPR regime that have had far-reaching consequences.
For instance, TRIPS does not recognise traditional or intellectual knowl-
edge. In contrast, the Convention on Biological Diversity (CBD) does, but
unlike the former, it does not have mechanisms for enforcement.5 I In

47 S Hawthorne 'The politics of farming and global theft: Africa and feminism from an
Australian perspective' (2003) 55 Agenda 95.
48 For a broad discussion, see S Ricketson 'Intellectual property and human rights in
S Bottomley & D Kinley (eds) Commercial law and human rights (2002) 187-213.
49 On the general situation with respect and the protection of these rights, see P Drahos
'The rights to food, health and intellectual property in the era of "biogopolies"' in
Bottomley & Kinley (n 48 above) 215-233. On the African situation, see F Mangeni
'Implementing the TRIPS agreement in Africa' in Bellman et al (n 34 above) 220.
50 This point is appreciated even by scholars who are otherwise very much in support of
the liberalisation of global trade. See eg I Bhagwati In defence of globalisation (2004).
51 The CBD entered into force in 1993, and is concerned, inter alia, with the 'equitable
sharing of the benefits arising out of the utilisation of genetic resources'. See especially
arts 8(j) & 15.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

order for indigenous peoples to protect their secrets, they must place
them in the public domain, amounting to a '... Catch-22 trap, which
allows the unscrupulous to exploit the knowledge'., 2
Secondly, although the problem of bio-piracy (the theft of such
knowledge and its patenting by multinational corporations) has been
in existence for a long time, under the propulsion of the forces of
globalisation, it has assumed new dimensions. 5 3 Thus, patents have
been issued in respect of 'inventions' already in the public domain
such as turmeric, neem, ayahuasca (yage) and basmati, 4 and in the
case of Africa, with respect to the snake-bean tree in Zimbabwe5 5 and
the hoodia cactus from among the San peoples of the Kalahari.
Although some of these patents have been successfully challenged,
there is no way of knowing how many other products are similarly
affected. 56 Moreover, the old adage 'prevention is better than cure'
clearly applies in this instance, especially because neither developing
countries nor those indigenous groups most affected by such violations
have the resources to challenge those who take out such patents. There
is also a clearly gendered dimension to the issue of the exploitation of
traditional knowledge. Women in many African societies are the repo-
sitories of such knowledge, particularly in terms of its relationship to
medicinal, food or other properties. However, when that knowledge
enters the public domain, whether legitimately or not, it is doubtful
that the women from whom this knowledge principally came are

52 A Kirby 'Traditional knowledge "in peril"' BBC News 19 February 2004, http://
news.bbc.co.uk/1/hi/sci/ teach/3496629.stm (accessed 28 February 2005); UNU-IAS
'The role of registers and databases in the protection of traditional knowledge: A
comparative analysis' January 2004, http://www.ias.unu.edu/ binaries/UNUIASTK-
RegistersReport.pdf (accessed 28 February 2005).
53 For a critical analysis of this issue, see RL Gana 'Has creativity died in the third world?
Some implications of the internationalisation of intellectual property' (1995) 24
Denver Journal of InternationalLaw and Policy 143.
54 For an analysis of the gaps in the protection of traditional knowledge, see D
Weissbrodt & K Schoff 'Human rights approach to intellectual property rights
protection: The genesis and application of Sub-Commission Resolution 2000/7'
(2003) 5 Minnesota Intellectual Property Review 15-21, http://mipr.umn.edu/archive/
v5nl/ Weissbrodt.pdf (accessed 28 February 2005).
5 See MM Phillips 'Bitter remedies: The search for plants that heal generates
international feuding' The Wall Street Journal 8 June 2001, http://www.lind.org.zw/
people/herbs/snake bean.htm (accessed 28 February 2005).
56 In respect of the hoodia, following a challenge to the patenting of the cactus without
acknowledging the San's contribution by Pfizer, an agreement was reached between
the San and the government, under which the agreement and some 100 000 San
peoples in four countries - Angola, Botswana, Namibia and South Africa - will
receive at least three more payments during the clinical testing of the drug. See
G Thompson 'Bushmen squeeze money from a humble cactus New York Times 1 April
2003, http://www.williams.edu/go/native/san.htm (accessed 28 February 2005). See
also T Mangold 'Sampling the Kalahari cactus diet,' BBC News 30 May 2003, http://
news.bbc.co.uk/1 /hi/programmes/correspondent/ 2947810.stm (accessed 28 Feb-
ruary 2005).
WHO'S WATCHING 'BIG BROTHER'?

duly rewarded. It is necessary to turn to a broader consideration of this

issue, as it is fundamental to the comprehensive understanding of the
tensions involved in promoting and protecting the right to culture.

3.4 Culture, globalisation and the issue of women's human rights

A gendered analysis, i e a discussion of the manner in which promoting
and protecting the right to culture has implications for relationships
between men and women, is critical to an understanding of how the
processes of globalisation impact upon the right to culture. This is
because an important dimension of culture regards the formation of
notions of masculinity and femininity. The widespread diffusion of com-
munication technologies prompted by globalisation has largely
enhanced ideas about gender equality and equity: 'The personal is
political' is becoming a more globally accepted premise for understand-
ing the manner in which violations of women take place at all levels of
society. The application of the principle has politicised and galvanised
many women, some of whom were never active before. It has also
enabled many of those who were already active to develop more inde-
pendent and self-defined relationships to politics.5 7 Through the influ-
ence in part of the globalisation of human rights standards, cultural
practices that violate human dignity and personhood have also been
subjected to critical exposure, eventually leading to their curtailment
and abolition. The most commonly cited is the practice of female geni-
tal mutilation (FGM), which is in clear violation of a host of human
rights standards, albeit that the notion of 'culture' or 'tradition' is
often invoked to justify the practice.58 Other practices include dowry
payments, levirate marriage (wife inheritance) and discriminatory
regimes of inheritance. The FGM issue clearly demonstrates that the
expression of culture is not value-neutral or even ungendered. Many
cultures either valorise highly masculinist practices or they marginalise,
demean or victimise women, children and minorities. Finding a balance
between ensuring that in the midst of the challenges presented by the
processes of globalisation, the promotion and protection of the right to
culture is a delicate task. This is because there are additional dangers in
emphasising a right to culture approach which omits consideration of
the gendered nature of the societies within which such a right is being
promoted or protected. At the same time it is important to be aware of
the complex interface of the racial and patronising elements that have
influenced the debate about such cultural practices.
African cultures and traditions as they presently exist are in the main
made for, of and by men! Many features of customary law effectively

57 AR Miles Integrative feminism: Building global visions 1960s- 1990s (1996) 3.

58 H Lewis & I Gunning 'Cleaning our own house: 'Exotic' and familiar human rights
violations' (1998) 4 Buffalo Human Rights Law Review 123.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

operate (to borrow the words of the 1995 Uganda Constitution) '...
against the dignity, welfare or interests of women [and] undermine
their status'. 5 9 Many constitutions of countries around the continent
(such as Zimbabwe) incorporate contradictory provisions on the appli-
cation of culture that have the effect of negating the promotion and
protection of women's human rights. 6 0 Perhaps the case that has
drawn most commentary with regard to the discriminatory application
of cultural practices is the decision in Venia Magaya v Nakayi Shonhiwa
Magaya,61 the main issue in which was whether a woman could inherit
her father's estate if he died without a will. Denying that a woman
could indeed inherit on account of the custom of the community
from which she came, the learned judge in the case observed that
'[t]he woman's status is therefore basically the same as that of any
junior male in the 63family'. 62 In an earlier article that covered this
issue, I have stated:
Upholding discrimination against women simply on account of their sex has
several implications for their enjoyment of human rights, both civil and
political and economic, social and cultural. Among the reasons why the
Magaya decision is important are issues relating to participation in both
economic and political life. But even more importantly is that deeming a
woman a minor means that actions such as 'chastisement', better known as
domestic violence, would also be deemed acceptable means of subjecting
women to the traditional 'discipline' of their husbands cum guardians.
Unfortunately, the Magaya decision is not an isolated one. Numerous
jurisdictions around the continent regularly give more weight to cul-
tural practices that support patriarchy and discrimination than they do
to the rights of women. In such a context, and particularly when added
to some of the ravages invoked by the varied processes of globalisation,
the situation of women becomes even more precarious. There is con-
sequently a need for concerted action to ensure that domestic legisla-
tion is reformed to guarantee that cultural practices that violate the
rights of women are subjected to a rigorous test of their conformity
to international human rights principles, and especially to the African
Charter provisions on non-discrimination. In the age of globalisation,
such action is imperative. Most importantly, how do we ensure that in

59 Art 33(6) & 32(1); cultural objective number xxiv of the National Objectives and
Directive Principles of State Policy encourages the incorporation into aspects of
Ugandan life all cultures and customary values consistent with fundamental rights and
freedoms and human dignity.
60 See Pityana (n 42 above) 237-239.
61 Judgment No SC 210/98/Civil Appeal No 635/92 of the Supreme Court of Zimbabwe
(unreported).
62 n 61 above, 10.
63 1 Oloka-Onyango 'Human rights and sustainable development in contemporary

Africa: A new dawn, or retreating horizons?' (2000) 6 Buffalo Human Rights Law Review
65.
WHO'S WATCHING 'BIG BROTHER'?

the discussion about globalisation and its impact on human rights, we

adhere to the principles of meaningful participation and inclusion in the
decision-making processes that give shape and impetus to the phenom- 64
enon and recognise the diversity of views that seek an audience?
However, it is not only the conceptual formulation of the laws and
constitutions that is a problem, but also the fact that African political,
social and economic institutions continue to be dominated by men and
marginalise women. For example, Africa is yet to have a female head of
state. The Organization of African Unity (and its successor, the African
Union) have never been headed by a woman. In a feminist analysis of
the implementation of the African Charter, Murray has argued that in a
comparative sense the African Commission is '... the most representa-
tive of all regional human rights bodies .... ,65 However, the instances
in which the institution has covered issues relating to the promotion
and protection of women's human rights are few and far between. For
example, despite the very progressive tenor of the SERAC decision, it
elicited a marked degree of blindness to the gendered nature of virtually
all the violations that took place in the Delta. And yet, throughout the
history of the struggles over the resources and environment of the
region, women have been critical actors in protesting the processes
of environmental despoilation and in decrying the dearth of the provi-
sion of social services by way of basic education, clean and potable
water and adequate health facilities. Although the Commission cor-
rectly focused on the violation done to rights in the family and to
several other economic and social rights, to omit a gendered analysis
from a consideration of these violations is to do only half the job.66 The
Commission needs to be aware that the differential status of men and
women - even during the course of a process of human rights viola-
tions that affected the community as a whole - will more often than
not result in more adverse consequences for women.
It is hoped that the African Commission will evolve to become more
sensitive to issues concerning the rights of women. In some respects,
positive steps have been taken. An example is the appointment of a
Special Rapporteur on the Rights of Women in Africa, who is acknowl-
edged to have made some critical improvement to the Commission's
approach to the situation of women on the continent. 6 7 The promul-

64 See D Gantz 'Failed efforts to initiate the "millennium round" in Seattle: Lessons for
future global trade negotiations' (2000) 1 7 Arizona Journal of International and
Comparative Law 351-352.
65 RMurray 'A feminist perspective on reform of the African human rights system' (2001)
1 African Human Rights Law Journal 207.
66 For a gendered critique of this aspect of the decision, see Oloka-Onyango (n 39
above).
67 See AK Wing & TM Smith 'The new African Union and women's rights' (2003) 13
Transnational Law and Contemporary Problems 59-64.
 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

gation of the Protocol to the African Charter on the Rights of Women in

Africa is another important development, although the instrument is
yet to come into force.68 The real test of the pudding will come through
the ability of African civil society actors to ensure that the lofty ideals of
the Protocol are implemented in practice. There are additional pro-
blems in the fact that in the same way that it has internationalised
human rights standards and thus greatly empowered women, globali-
sation has also led to the increased incorporation of women in the
labour market. As such, many women have been liberated from the
drudgery and oppression of unpaid household labour. Given that
many negative cultural practices exercise an influence over women
because of their economic dependence on men, the ability to be eco-
nomically autonomous helps in expanding their space of operation. At
the same time, the conditions under which they toil in many of the
export promotion zones that have sprung up around Africa to meet the
pressures of global capitalism leave a great deal to be desired. A report
by the Kenya Human Rights Commission on the cut flower industry
provides shocking testimony of the Dickensian conditions under
which employees - the majority of whom are women - operate.6 9
Although there is a clamour for the establishment of these kinds of
industry - prompted in large part by schemes such as the African
Growth and Opportunities Act - there is a need for considerable cau-
tion in embracing what may turn out to be a poisoned chalice. And in
this respect, the role of civil society is critical.

3.5 Buttressing African civil society

The complex implications of the processes of globalisation for the rea-
lisation of the right to culture are becoming more apparent by the day.
However, if institutions such as the African Commission, governments
and international organisations are to pay increased attention to those
implications, civil society must play a more active role. The World Bank
was persuaded by concerted civil society action not to provide the
financing for the construction of the Bujagali Dam in Uganda. Although
the project was ultimately abandoned on account of allegations of
bribery, it was a result of the coming together of grassroots environ-
mental activists and threatened minorities in the region of the dam. The

68 As at the end of April 2005, 10 of the 15 countries required to bring the instrument
into force had ratified the Protocol.
69 See Kenya Human Rights Commission Beauty and agony: An advocacy research on the
working conditions in the flower plantations in Kenya (2001). See also C Majtenyi
'Thorny issue: Flower firms accused of exploiting workers' The East African 18 February
2002.
WHO'S WATCHING 'BIG BROTHER'?

formula for the sharing of proceeds on the Chad-Cameroon oil project

was greatly influenced by the operations of civil society and its trans-
continental mobilisation, which argued that the needs and interests of
the indigenous peoples affected by the project needed to be taken into
account. Civil society was instrumental in both the case of the hoodia
cactus, as well as in the Zimbabwean snake-bean tree dispute. In other
words, civil society must play a more active role in ensuring that the
processes of globalisation do not adversely affect the promotion and
the protection of the right to culture.
Particular attention needs to be paid to issues such as the promotion
and protection of languages, land rights, the rights of pastoralists, the
protection of traditional knowledge from biopiracy, and the application
of exclusionary environmental policies that affect forest dwellers and
other hunter-gatherers. What becomes clear is that many African acti-
vists are rather shy of involving themselves in these issues, and in many
instances it is international non-governmental organisations that carry
the mantle. Consequently, there is a need for African civil society to be
more proactive, and especially to become more engaged in the many
discussions taking place on issues such as traditional knowledge in
organisations like the WTO and the World Intellectual Property Orga-
nisation. African civil society needs to more actively engage with African
governments in the articulation of progressive positions on these issues
and especially in making sure that international financial institutions
(the World Bank and the International Monetary Fund) are more
attuned to the various dimensions of the issue.
At the same time, international bodies such as the African Commis-
sion need to review their approach to non-state actors. For example, in
the SERAC decision, the main focus of condemnation for the commis-
sion of the violations complained of was the Nigerian government.
Little attention was given to the obligations and responsibilities (in
human rights terms) of the companies that were intimately involved,
not only in the exploitation of the resources of the region, but in many
of the human rights violations that occurred there. It is imperative that
in the age of globalisation, institutions such as the African Commission
are compelled to consider the human rights obligations of non-state
actors such as TNCs with enhanced attention. 70 Through the combined
effort of civil society and the monitoring and promotional bodies that
are in existence, globalisation can be turned into a force for the pro-
gressive realisation of all human rights, but in particular, as a force for
the promotion and protection of the right to culture.

70 For an analysis of this issue, see Oloka-Onyango (n 39 above) 895-905.

 (2005) 5 AFRICAN HUMAN RIGHTS LAW JOURNAL

4 Conclusion and recommendations

This paper has focused on only a handful of the many issues that arise in
the debate over the impact of globalisation on the promotion and
protection of cultural rights in the African context. What is clear is
that in the era of globalisation, it is not enough to look only to the
state as the primary obligor with respect to either dealing with the
negative consequences of globalisation, or to the enhanced protection
of the right to culture. A considerable number of actors, other than
states, should equally be obliged to respect, protect and fulfil the indi-
vidual or group rights to a cultural life. Among these are transnational
corporations, the family and communities. There is consequently a
need to develop a framework within which the responsibility for
human rights violations should not only be that of the state, but also
that of other actors. In this arrangement, it would be possible to bring
claims of human rights violations (including violations of the right to
culture) against the state as much as it would be possible to do so
against other (non-state) actors. The challenge that face us as human
right activists is to critically reflect on the most appropriate manner to
enhance the positive and confront and eliminate the negative aspects
of globalisation. Only then can we ensure that the processes of globa-
lisation are sensitive to the goals of sustainable human development of
which the promotion and protection of human rights are paramount.
Many of the processes that we know as globalisation will in all prob-
ability continue to mark the trends of human social and economic
development for the near future. Needless to say, none of these pro-
cesses are divine or pre-ordained; they emanate from (and are influ-
enced by) human agency. As such, what is critical is the manner in
which human society arranges itself and guarantees that these pro-
cesses are made sensitive to the better protection of human rights. It
is necessary to check these processes in order to ensure that they are in
line with international human rights law. A great need exists to review
the law to ensure that human rights are respected, protected and ful-
filled in the globalisation process by all actors involved, namely the
state, multi-lateral institutions, transnational corporations, families and
communities.