Alessandra Sarelin
Alessandra Sarelin | Exploring the Role and Transformative Potential of Human Rights in Development Practice and Food Security: A Case Study from Malawi | 2012
Exploring the Role
and Transformative
Potential of Human
Rights in Development Alessandra Sarelin
Practice and Food
Security: A Case Study Exploring the Role and Transformative
from Malawi Potential of Human Rights in Development
A study in International Law Practice and Food Security:
This thesis investigates the interplay between
human rights and development. It explores the A Case Study from Malawi
role of human rights (as standards, as principles, as
rhetoric) and their transformative potential in terms
of challenging the status quo in favour of margina-
lised rights-holders.
The study contains an analysis of the role of human
rights in three food-related interventions in Malawi UFULU WOKHALA
representing different approaches to development
and food security: (1) a charity-based approach); (2)
NDI CHAKUDYA
a rights-based approach); (3) a legal human rights
approach.
9 789517 656641
Åbo Akademi University Press | ISBN 978-951-765-664-1
Alessandra Sarelin (born Lundström)
(born1976)
- M.Pol.Sc. (2003, Åbo Akademi University)
Åbo Akademi University Press
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EXPLORING THE ROLE AND TRANSFORMATIVE POTENTIAL OF
HUMAN RIGHTS IN DEVELOPMENT PRACTICE AND FOOD SECURITY
Exploring the Role and Transformative
Potential of Human Rights in
Development Practice and Food Security
A Case Study from Malawi
Alessandra Sarelin
Åbo Akademis förlag | Åbo Akademi University Press
Åbo, Finland, 2012
CIP Cataloguing in Publication
Sarelin, Alessandra.
Exploring the role and transformative
potential of human rights in develop-
ment practice and food security : a
case study from Malawi / Alessandra
Sarelin. - Åbo : Åbo Akademi
University Press, 2012.
Diss.: Åbo Akademi University.
ISBN 978-951-765-664-1
ISBN 978-951-765-664-1
ISBN 978-951-765-665-8 (digital)
Painosalama Oy
Åbo 2012
“The whales do not sing because they have an answer, they sing because they have a song”
~ Gregory Colbert
CONTENTS
ACKNOWLEDGMENTS ....................................................................................................... v
ABBRIVIATIONS .................................................................................................................. vi
PART I RESEARCH QUESTIONS, CONTEXT, AND METHODOLOGY
1.1 Theoretical and methodological starting points .................................................................. 1
1.2 Research questions.............................................................................................................. 4
1.3 Literature on the ‘added value’ of human rights-based approaches to development ......... 7
1.4 Purpose and assumptions .................................................................................................. 12
1.5 The food security situation in Malawi .............................................................................. 14
1.6 Data and method ............................................................................................................... 19
1.6.1 Research strategy: Analysis of three approaches ................................................ 19
1.6.2 Data collection: Semi-structured individual interviews and group interviews ... 22
1.6.3 Ethical issues ....................................................................................................... 27
1.6.4 Analysis of interview data ................................................................................... 28
1.6.5 The question of validity in analysis of qualitative data ....................................... 30
1.6.6 Summary.............................................................................................................. 32
1.7 Thesis outline .................................................................................................................... 32
PART II CONCEPTUAL ANALYSIS
2.1 Review of the meanings attached to ‘development’ ......................................................... 34
2.1.1 Why ‘development’? ........................................................................................... 34
2.1.2 The economic growth and human development schools ..................................... 35
2.1.3 Defining development and poverty in human rights approaches ........................ 37
2.1.4 Alternative development models and empowerment .......................................... 42
2.1.6 Concluding remarks............................................................................................. 46
2.2 Giving meaning to ‘human rights’, agency, and change in human rights discourse ........ 47
2.2.1 Introduction ......................................................................................................... 47
2.2.2 Historic overview of the human rights movement .............................................. 48
2.2.3 A review of the meanings attached to the human rights concept: Moving
beyond human rights as defined by the ‘powerful for the powerless’ ................ 51
2.2.4 Human rights and agency .................................................................................... 60
2.2.5 The political element of human rights ................................................................. 62
2.2.6 Human rights and legalization ............................................................................. 64
2.2.7 Human rights law and change (contesting the status quo) .................................. 65
2.2.8 The question of universality, relativism, particularity and context ..................... 69
2.2.9 Individual rights and collective rights ................................................................. 74
2.2.10 Indivisible and hierarchical human rights ........................................................... 76
2.2.11 Concluding remarks............................................................................................. 79
2.3 Food rights, food security, and livelihoods ...................................................................... 81
2.3.1 Who are the poor and hungry? ............................................................................ 81
2.3.2 The poor as experts on their own development ................................................... 83
2.3.3 Integration of food security and the right to food................................................ 84
ii
2.3.4 The right to food defined internationally, regionally and nationally................... 92
2.3.5 Concluding remarks........................................................................................... 102
2.4 The role and meaning of ‘human rights principles’ in development practice ................ 103
2.4.1 Defining human rights-based approaches to development ................................ 103
2.4.2 Five principles as key elements of human rights approaches to development
cooperation ........................................................................................................ 107
2.4.3 Express linkage to human rights norms and standards: Using human rights
law as a framework for analysis ........................................................................ 109
2.4.4 Equality and non-discrimination ....................................................................... 112
2.4.5 Accountability ................................................................................................... 117
2.4.6 Participation ....................................................................................................... 127
2.4.7 Empowerment.................................................................................................... 135
2.4.8 Concluding remarks on human rights principles ............................................... 146
PART III THE ROLE OF HUMAN RIGHTS IN FOOD SECURITY EFFORTS IN
MALAWI: CHARITY-BASED, RIGHTS-BASED AND LEGAL
APPROACHES
3.1 Human rights discourses in Malawi: Giving meaning to ‘human rights’ ....................... 148
3.1.1 Second liberation: Commitment to a multiparty democracy, human rights,
and a market economy ....................................................................................... 148
3.1.2 ‘Freedom’ discourse .......................................................................................... 150
3.1.3 Local reactions to official human rights discourses .......................................... 153
3.1.4 Civic education .................................................................................................. 154
3.1.5 The right to food in the legal framework of Malawi ......................................... 156
3.1.6 Concluding remarks........................................................................................... 158
3.2 Food assistance: A charity-based service ....................................................................... 158
3.2.1 Introduction ....................................................................................................... 159
3.2.2 Food aid as part of the right to food .................................................................. 160
3.2.3 The new food aid agenda: No free food ............................................................ 162
3.2.4 Good development practice ............................................................................... 164
3.2.5 Concluding remarks........................................................................................... 170
3.3 A rights-based approach to food security: Demanding accountable services as
a matter of rights and obligations ................................................................................... 171
3.3.1 Oxfam’s rights-based approach ......................................................................... 171
3.3.2 Background to the Shire Highland Sustainable Livelihoods Programme ......... 172
3.3.3 Programme activities in 2005/2006 ................................................................... 174
3.3.4 Focus on rights and obligations ......................................................................... 175
3.3.5 Sustainability and the role of the government ................................................... 177
3.3.6 Giving meaning to human rights: An actor-oriented approach ......................... 179
3.3.7 Are rights confrontational? ................................................................................ 182
3.3.8 Rights-based development principles ................................................................ 184
3.3.9 Concluding remarks........................................................................................... 191
3.4 A legal approach to food security: Legislation as a tool for transformation .................. 193
3.4.1 Introduction to the Right to Food Project .......................................................... 193
3.4.2 Background: The famine of 2001/2002 ............................................................. 195
3.4.3 Giving meaning to the right to food in Malawi: A word on process ................. 198
3.4.4 From freedoms to entitlements? ........................................................................ 200
3.4.5 Policies as politics ............................................................................................. 204
iii
3.4.6
What is the role of human rights principles in the draft bill and the Right
to Food Project? ................................................................................................. 206
3.4.7 Concluding remarks........................................................................................... 209
3.5 Conclusions and review of assumptions ......................................................................... 211
PART IV CONCLUDING DISCUSSION
SVENSK SAMMANFATTNING ....................................................................................... 224
BIBLIOGRAPHY ................................................................................................................ 226
Books and articles .................................................................................................................. 226
Research reports and papers ................................................................................................... 237
The African Commission on Human and People’s Rights .................................................... 238
UN documents and reports ..................................................................................................... 238
NGO reports and documents .................................................................................................. 242
Donor documents and reports ................................................................................................ 243
Evaluations ............................................................................................................................. 244
Press ....................................................................................................................................... 244
Treaties ................................................................................................................................... 245
Declarations ............................................................................................................................ 245
National legal and policy material, and surveys .................................................................... 245
Interviews (archived at Finnish Social Science data Archive under FSD2727) .................... 246
iv
ACKNOWLEDGMENTS
First of all I would like to thank the people I encountered in Malawi at the end of 2006. Doing
field research was a challenging process that brought me in touch with my own vulnerability.
This vulnerable state forced me into new insights – it opened up new possibilities and ways of
seeing. A special thanks goes to David Nungu, who helped me identify my lost suitcase at the
airport in Lilongwe; Fiona Mwale and Mary Kachale who assisted me with numerous
practical tasks; Joe Chunga who acted as my driver and research assistant; Christine Dun who
asked the right questions at the right time. Moreover, without the support of my hosts at
Church and Society, Oxfam Malawi, and staff at the Centre for Social Research at the
University of Malawi I would not have been able to conduct this work. Almost seven weeks
of field research was made possible thanks to funding from the Nordic Africa Institute.
Over the years, many colleagues have given me valuable comments on my research. I am
especially grateful for comments by Dr. Hans-Otto Sano, Dr. Celestine Nyamu-Musembi,
Professor Jemery Gould, Dr. Harri Englund, Siobhán McInerney-Lankford, Zairah Kahn as
well as my colleagues within the research project “Implementing a Human Rights-Based
Approach to Development” that was funded by the Academy of Finland (2006-2011). It has
been enriching to work within a research project in a team of researchers exploring similar
questions related to human rights and development. The majority of the funding for my thesis
has come from the Academy of Finland project but in addition the Finnish Graduate School in
Human Rights Research has also provided funding.
I want to thank my first supervisor Professor Martin Scheinin for encouraging me to write a
thesis and for being open to my multidisciplinary methods. I thank the Director of the Institute
for Human Rights, Professor Elina Pirjatanniemi, for commenting on a preliminary version of
this thesis and for her practical and emotional support. I am also grateful for valuable and
constructive comments by the pre-reviewers Professor Paul Gready and Dr. Thoko Kaime.
Last but not least I want to thank my family and friends. The past six years of writing (and
mothering) has involved transformation – the theme of my thesis – on all levels in my life. I
thank you for inspiring discussions, for pushing me, for supporting me, for being part of the
circle that means everything to me.
Alessandra Sarelin, October 2012
v
ABBRIVIATIONS
ADMARC Agricultural Development and Marketing Corporation
CEDAW Convention on the Elimination of All Forms Discrimination
against Women
CSO Civil society organisation
DBU Development Broadcasting Unit
DCHR Danish Centre for Human Rights
DEC District Executive Committee
DFID United Kingdom’s Department for International Development
DPP Democratic Progressive Party
ESCR Economic, social and cultural rights
FAO Food and Agriculture Organization of the United Nations
FFA Food for asset
FFW Food for work
FISP Farm Input Subsidy Programme
GA General Assembly of the United Nations
HRBA Human rights-based approach
ICESCR International Covenant on Economic Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
HIS Integrated Household Survey
JEFAP Joint Emergency Food Aid Programme
Malawi CARER Centre for Advice, Research, and Education on Rights
MBC Malawi Broadcasting Corporation
MCP Malawi Congress Party
MDGs Millennium Development Goals
MHRRC Malawi Human Rights Resource Centre
MoAFS Ministry of Agriculture and Food Security
MPI Multidimensional poverty index
MVAC Malawi Vulnerability Assessment Committee
NGO Non-governmental organization
NORAD Norwegian Agency for Development
OECD Organisation for Economic Co-operation and Development
PRA Participatory rural appraisal
PWESCR Programme for Women’s Economic, Social and Cultural Rights
RLC Radio listening club
RBA Rights-based approach
SGR Strategic Grain Reserve
SIDA Swedish International Development Agency
SHSLP Shire Highland Sustainable Livelihoods Programme
UNDP United Nations Development Programme
UDF United Democratic Front
VDC Village development committee
WFP World Food Programme
WLAS Women and Law in Southern Africa (NGO)
WMS Welfare Monitoring Survey
vi
PART I RESEARCH QUESTIONS, CONTEXT, AND
METHODOLOGY
1.1 Theoretical and methodological starting points
This research is interested in processes of change. Change is brought about by people and
groups who have agency and a vision for the kind of society they want to live in. The
theoretical starting point is the ‘constructivist’ view that “individuals and groups are not only
shaped by their world but can also change it,” as expressed by Audie Klotz and Cecilia
Lynch. New normative, cultural, economic, social, and political practices that change
conventional wisdoms are set into motion by people,1 who believe they can affect change in
their lives, as a perquisite for agency. Constructivism is increasingly the lead paradigm in
social science, with positivism no longer dominating except in economics and ‘number-
crunching’ sociology.2
Another theoretical starting point is that human rights are social constructions created by
people. This study relies on a discursive understanding of human rights, moving away from a
positivist view according to which human rights are ‘things’ that can be measured.3 Instead,
human rights are seen as social constructions that are discursively constructed,4 and therefore
by definition change over time.
John Searle makes a distinction between ‘brute facts’ and ‘institutional facts’. The former are
physical or natural facts while the latter are created by human agreement, through a shared
language. Institutional facts cannot exist as isolated units but only through being part of a
larger system of relationships to other facts. Social reality is created by social acts – and in
some sense this reality is only the continuous possibility to act.5 Human rights are institutional
facts that have come into existence through social agreement.
Constructivists claim that particular meanings become ‘stable’ over time, creating social
orders called structures or institutions. In this context, rules and norms set expectations about
how the world works, and what types of behaviour is legitimate.6 As long as international
human rights agreements are breached on such a massive scale as is the case today, one can
probably not say that human rights constitute very ‘stable’ institutional facts, however, there
is the continuous possibility for people and institutions (mainly states) to act according to the
human rights ideal that has been manifested in legal agreements. At the same time there is
also the possibility for individuals and groups to claim and demand respect for the human
rights ideal. The position taken in this study is that human rights are constantly being
negotiated and renegotiated, i.e., human rights are not static social constructions.
1
Audie Klotz and Cecelia M. Lynch, Strategies for Research in Constructivist International Relations (New
York: M.E. Sharpe, 2007) at 1.
2
Jan Nederveen Pieterse, Development Theory: Deconstructions/Reconstructions (London: Sage Publications,
2001) at 142.
3
See Jim Ife, Human Rights and Social Work: Towards Rights-Based Practice (Cambridge: Cambridge
University press, 2001) at 145.
4
See Neil Stammers, Human Rights and Social Movements (London: Pluto Press, 2009) at 10.
5
Johan R. Searle, Konstruktionen av den sociala verkligheten (Uddevalla: Daidalos, 1997; Original title: The
Construction of Social Reality, 1995) at 46, 49, 50.
6
Klotz and Lynch, Strategies for Research, supra note 1, at 8.
1
Institutional facts are of course not independent from brute facts of materiality or physicality.
Intuitional facts require some sort of physical realization, but the form they assume are not
decisive. Human rights, “in all their many forms, have to assume some materiality or
physicality for functioning as operative norms and standards.” This can be called the ‘material
infrastructure’.7 The material infrastructure of human rights includes international legal
agreements, monitoring mechanisms, institutions, reports, etc.
When it is accepted that ‘social reality’ is being constructed and reconstructed, it is clear that
a single text, such as the Universal Declaration of Human Rights, is open to multiple readings.
It is the reader rather than the author who ‘makes sense’ of it. In this world view, these
multiple wisdoms by the readers will be valued, “rather than single, unifying world views
imposed from above.”8 As articulated by Baxi, no text may “claim the status of unique
authorship and therefore claim axiomatic authority; the birth of the reader (as Roland Barthes
said memorably) entails the death of the author.”9
Yet, in human rights discourse ‘from above’ expert knowledge is given high value and
emphasis. However, there can be no independent and quasi-objective concept without falling
into a top-down practice in which “generalized truths are used to determine how to act in
specific contexts.”10 Jim Ife notes that such top-down perspectives are characteristic of
modernity and its search for certainty, order and predictability.11 Merry notes that human
rights conventions embody many of the ideals of modernity, offering a universal vision of just
societies. A particular cultural system that is rooted in a “secular transnational modernity” is
articulated in the human rights regime. Claims to ‘culture’ do not “justify deviation the culture
of transnational modernity,” 12 an issue I will come back to later. It follows from the
increasing relevance given to the international human rights system that ‘human rights
culture’ is a core aspect of “a new global, transnational culture, a sui generis phenomenon of
modernity.” At the core of its structuring ideas lies, according to Cowan et al, its
individualistic conception; addressing suffering through a legal/technical framework (instead
of e.g. an ethical); and emphasizing certain aspects of human relationships over others
(individual’s rights over an individual’s duties or needs). These are foundational ideas, even
though they are contested, as the authors point out, for example through processes related to
the African Charter on Human and Peoples’ Rights.13
However, the world in which any human rights-based development programme operates is
characterized by unpredictability and chaos.14 Imposing order on chaos and predictability on
uncertainty requires a lot of control, and often coercion,15 that goes against the idea of agency
and stifles initiative and ‘from below’ action. The actor-oriented and human rights
perspectives from below, which are raised in this study as an alternative to the more
7
Upendra Baxi, “Politics of Reading Human Rights: Inclusion and Exclusion of Human Rights”, in Meckled-
García & Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and
Human rights Law (London: Routledge, 2006) 182-200, at 189.
8
Ife, Human Rights from Below (Cambridge: Cambridge University Press, 2010) at 47.
9
Baxi, “Politics of Reading”, supra note 7, at 187.
10
Ife, Human Rights from Below, supra note 8, at 134.
11
Ibid., at 30.
12
Sally Engle Merry, “Constructing a Global Law-Violence against Women and the Human Rights System”, 28
Law & Social Inquiry (2003) 941-977, at 945-946.
13
Jane K. Cowan, Marie-Bénédicte Dembour and Richard A. Wilson, “Introduction”, in Cowan, Dembour &
Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001)
1-26, at 12.
14
Chaos does, however, not mean randomness or the absence of order; “it refers to the unpredictability of the
outcome of processes”. Pieterse, Development Theory, supra note 2, at 143.
15
Ife, Human Rights from Below, supra note 8, at 30.
2
conventional approaches, are postmodern perspectives that put emphasis on wisdom and
change from below.16
The theoretical basis for an actor perspective is from development sociology, here represented
by the work of Norman Long.17 The theoretical basis of the actor-oriented perspective on
human rights is in part from legal literature that does not position itself within the human
rights tradition, but which calls for evaluation of legal principles in terms of their concrete
effects in a social setting. Emphasis is on estimating consequences for less powerful groups
and/or individuals in society. Celestine Nyamu-Musembi quotes Joseph Singer who says we
must ask ourselves not only whether a social or legal practice works, but ‘works for whom’?
Due to power differences and hierarchical relationships in society there is need to look
beyond abstract formal equality principles. Through asking the question ‘works for whom?’
and translating the question into action, people change the terms of institutionalized
understandings of rights and make “the meaning of rights” real in their own context.18 This is
in accordance with the constructivist view that people have agency and are thereby capable of
altering meanings, structures, and institutional facts.
Human rights is not a discipline in its own right and research on human rights is found within
many disciplines. Human rights scholarship has historically been dominated by philosophy
and law, while international relations and political science have more recently devoted
growing attention to human rights.19 The perspective of this thesis is from the field of
international law, but due to the nature of the research subject it takes a multidisciplinary
approach. Study and interpretation of legal texts, such as international conventions, and the
activity of judicial or quasi-judicial institutions is only a small part of the research strategy
chosen. The usual perspective on human rights in international relations and political science,
that is to approach human rights as a state-centric practice,20 is also not sufficient to answer
the research questions on the role of human rights in development.
I have been especially inspired by research from the fields of anthropology,21 and community
development and social work,22 and wish to mention these disciplines as I believe they can
make considerable contribution to human rights studies. I have also been inspired by lawyers
who apply anthropological methods.23 Ethnography of human rights24 is an area of
scholarship that is essential for improving our understanding of the practice of human rights
in transnational as well as local contexts. The book The Practice of Human Rights: Tracking
Law Between the Global and the Local reveals that this practice is more complicated than
previously assumed. What is even more crucial is that when such studies are undertaken,
despite methodological challenges, they often suggest that the ‘practice’ being documented
and analysed potentially “transforms the framework through which the idea of human rights
16
‘Postmodern’ is a highly complex concept and examining its meaning is beyond the scope of this chapter.
Moreover, postmodernists tend to avoid definitions that are seen as engaging with the qualities of rationality and
objectivity that postmodernists deny. The Post-Modern Age is characterized by incessant choosing; pluralism is
the ‘ism’ of our time, which is seen as both the great problem and the great opportunity. See Krishan Kumar,
From Post-Industrial to Post-Modern Society (Oxford: Blackwell Publishers, 1995) 104-105.
17
See e.g. Norman Long, Development Sociology: Actor Perspectives (London: Routledge, 2001).
18
Celestine Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, 36 IDS Bulletin (2005)
41-51, at 41.
19
Stammers, Human Rights and Social Movements, supra note 4, at 12.
20
Ibid., at 12.
21
Sally Engle Merry’s work is important and also that of Marie-Bénédicte Dembour.
22
See Ife, Human Rights and Social Work, supra note 3; Ife, Human Rights from Below, supra note 8.
23
Celesetine Nyamu-Musembi’s work is important here.
24
See Mark Goodale and Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the
Global and the Local (Cambridge: Cambridge University Press, 2007).
3
itself is understood.”25 This is also a central thread in this study about human rights-based
development practice.
‘Discourse’ is widely used in social theory and analysis, inspired, for example, by Michel
Foucault, as a means of referring to different ways of structuring areas of knowledge and
social practice.26 The human rights community has its specific way of “talking about and
understanding the world”,27 and thereby we can refer to ‘human rights discourse’. While I do
analyse and refer to ‘discourse’, this study does not apply methods of discourse analysis. Key
approaches in discourse analysis are built on linguistics28 and this way of studying social
reality and change is not useful for the purpose of answering my research questions.
This study is ‘critical’ in the way that it tries to unmask dominant, taken-for-granted
understandings of reality. It wants to destabilise prevailing systems of meaning, especially
that of the human rights concept. It is when we see that our understandings of the world are
merely that – understandings – not the world itself that we can transform them into objects of
discussion and criticism and open to change.29
1.2 Research questions
An increasing number of people go hungry. Between 2007 and 2008 the number of
undernourished increased by 8 percent in Africa.30 At the same time as the number of the
hungry has risen, the levels of cereal production have been breaking records on a worldwide
basis.31 This shows that Amartya Sen has been right in pointing out that increasing production
will not solve global hunger.32
As the majority of the hungry live in rural areas and usually depend on small-scale farming or
are employed on large plantations, it is through supporting them that changes can take place.33
Hunger is a problem related to the lack of access to productive resources, the concentrated
input of the providers sector and insufficient support to the poor, i.e., of social, economic and
political structures. I agree with De Schutter et al that in the debates on hunger too little
attention has been paid to the imbalances of power in the food systems and to the failure of
the international economic environment. There are structural problems in the political
economy of food production and distribution chains.34 The question is whether human rights
practice and discourse, through the right to adequate food and human rights-based strategies
to food security, can contribute to challenging and transforming the structures that prevent
small-scale farmers in the global South feeding themselves and their communities.
25
Mark Goodale, “Locating Rights, Envisioning Law Between the Global and the Local”, in Mark Goodale and
Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the Global and the Local
(Cambridge: Cambridge University Press, 2007) 1-38, at 4.
26
Norman Fairclough, Discourse and Social Change (Oxford: Polity Press, 1992) at 3.
27
Definition of ‘discourse’ in Marianne W. Jørgensen and Louise Phillips, Discourse Analysis as Theory and
Method (London: Sage Publications, 2002) at 1.
28
Fairclough, Discourse and Social Change, supra note 26, at 1.
29
See Jørgensen and Phillips, Discourse Analysis as Theory and Method, supra note 27, at 176 and 178.
30
Food and Agriculture Organization, The State of Food Insecurity in the World 2011 (Food and Agriculture
Organization of the United Nations: Rome, 2011) at 8.
31
Olivier De Schutter and Kaitlin Y Cordes, “Accounting for Hunger: An Introduction to the Issues”, in De
Schutter & Y Cordes (eds), Accounting for Hunger: The Right to Food in the Era of Globalisation (Oxford: Hart
Publishing, 2011) 1-24, at 6.
32
See for example Amartya Sen & Jean Drèze “Hunger and Public Action”, in The Amartya Sen & Jean Drèze
Omnibus (Oxford: Oxford University Press, 1999).
33
De Schutter and Cordes, “Accounting for Hunger”, supra note 31, at 6.
34
De Schutter and Cordes, “Accounting for Hunger”, supra note 31, at 7.
4
This thesis believes that human rights law is not a tool that is going to re-shape the economic
domain. Although human rights law makes clear that the state has some responsibilities in the
economic sphere (at a minimum supervision), which places it in evident contrast with the
neo-liberal paradigm of the non-interventionist state, and even to the managerial, good
governance state; it remains, however, a fact that human rights operates on the margins of real
economic power.35 Paul Gready rightly points out that in the ongoing financial crisis there has
been an almost complete absence of human rights references in political or popular
discussions. Moreover, not even the successes of human rights discourse – Gready refers to
the Treatment Action Campaign in South Africa and the Right to Food Campaign in India –
have challenged the prevailing market-led economic model in these countries.36 Due to the
limited impact and potential I see for human rights in challenging and transforming the
dominant economic structures, nationally and internationally, this thesis will explore what
other, if any, transformative potential human rights have in development processes and
contexts. It explores the role of human rights in general and the right to food in particular in
development cooperation policy and practice. It does not investigate the question of whether
human rights-based development approaches lead to better development outcomes.
The starting point is that a rights discourse can have liberating effects at one moment and can
facilitate domination at another.37 Therefore, there is need for research into specific contexts
where human rights are used to further a development agenda. In part III, I will give an
analysis of three specific projects in Malawi in order to demonstrate the diverse roles that
human rights play in development processes.
A second starting point is that in the name of human rights advancement, a huge number of
schemes for transformation, regulation, and ‘governance’ have been established all over the
world.38 Some kind of transformation is indeed taking place and there are authors who call
this an expansion of modernity.39 It is less clear whether the expansion of the human rights
idea contributes to change that contest the status quo in favour of oppressed and marginalized
people and groups. This thesis investigates whether human rights, as they are further
integrated into development, contribute to transforming development practice and structures
that prevent agency for the poor and marginalised. Is it possible for human rights to be a
counter-hegemonic force in the face of hegemonic development? (I agree with Rajagopal that
as ‘development’ has been expanded to include everything from poverty alleviation,
democratization, rule of law, human rights, environmental sustainability to anti-corruption,
‘development’ has come to assume a hegemonic function.40) Are human rights creating space
35
Paul Gready, “Reasons to Be Cautious about Evidence and Evaluations: Rights-based Approaches to
Development and the Emerging Culture of Evaluation”, 1 Journal of Human Rights Practice (2009) 380-401, at
385, 388, 399.
36
Ibid., at 382, 386. I partly disagree that the Right to Food Campaign has not challenged the prevailing
economic model: it has challenged it but the structural changes sought have not been successful. See chapter
2.3.4.
37
Mahmood Mamdani, “Introduction” in M. Mamdani (ed.) Beyond Rights Talk and Culture Talk: Comparative
Essays on the politics of Rights and Culture (New York: St. Martin’s press, 2000) 1-13, at 6. One of the major
conclusions in the book Contested States is that “the power of law is at once hegemonic and oppositional.” See
Mindie Lazarus-Black & Susan f. Hirsch (eds) Contested States. Law, Hegemony and Resistance (New York:
Routledge, 1994) at 20.
38
Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010) at
227.
39
Merry, “Constructing a Global Law”, supra note 12, at 945-946; Cowan, Dembour and Wilson,
“Introduction”, supra note 13, at 12.
40
Balakrishnan Rajagopal, “Counter-hegemonic International Law: Rethinking Human Rights and Development
as a Third World Strategy”, in R. Falk, B. Rajagopal & J. Stevens (eds), International Law and the Third World:
5
for agency and empowerment? In order to answer these questions it is necessary to examine
more closely how the human rights concept has been defined, and by whom it has been
defined.
It is also necessary to be to be aware of the various forms that the so called human rights-
based approaches to development assume. There is no single definition of the concept ‘human
rights-based approach to development’ and, therefore, I agree with Patrick Twomey that it
makes sense to talk of human rights-based approaches instead of one approach.41 In this
thesis most variations of human rights-based and rights-based approaches appear in one form
or the other, and the ambition is to make the distinctions clear whenever necessary.
Moreover, there are clear tensions between human rights-based approaches to development
cooperation and to national development policy. For instance, the Indian MP Jaipal Reddy
makes clear that “a rights-based approach in public policy is a moral imperative” for India but
that a human rights-based approach to development cooperation is patronizing in its
assumption that donors know what it in the best interest of the South. Such an assumption
aims at introducing a rights-based approach to public policy from the outside, and “bring
about empowerment through the planning, programming and implementation activities of a
donor agency.” This approach seeks to bring about empowerment through external pressure
and is based on the conviction that to achieve poverty eradication there needs to be ‘good
leadership’, ‘good governance’ and the empowerment of ordinary people. Reddy highlights
that a rights-based approach to public policy, that comes from within the country is more
desirable as movement away from political, economic, and social oppression can only be
sustainable when it springs from within a society.42
This dilemma – human rights as a form of imperialism – cannot be avoided when
investigating the possible transformational role of human rights in development. It is further
perpetuated by the problem of the lack of accountability on the part of donors.43 According to
the human rights-based language now widely used in international cooperation and aid circles,
the people in the recipient countries are seen as rights-holders, and the national state is seen as
the primary duty-bearer, but it is not clear where the funder countries position themselves in
the ‘right-duties’ equation.44
While being sympathetic to human rights-approaches to public policy, it is the more
interventionist human rights strategies that are the main focus in this thesis. Therefore, a
second set of questions arise concerning development planning and programming. What
difference do human rights make as they enter into development programmes and projects,
what new elements are brought in, and what value is added? What are the characteristics of
the so called human rights-based approaches to development cooperation, compared to ‘good
development practice’? How are ‘legal approaches’ to be regarded? (A legal approach to
human rights is internally diverse but a central feature is that the idea of human rights must be
legislated, legally recognised, and codified.45) I will approach these questions on a general
Reshaping Justice (London: Routledge-Cavendish, 2008) 63-79, at 65. “Hegemony” is the social, cultural,
ideological, or economic influence exerted by a dominant group.
41
Patrick Twomey, “Human Rights-Based Approaches to Development: Towards Accountability”, in Mashood
Baderin (ed.), Economic, Social and Cultural Rights in Action (Oxford: Oxford UP, 2007) 45-69, at 49.
42
Statement by Mr.S. Jaipal Reddy, Member of Parliament on the agenda item 88, Operation activities for
development at the Second Committee of 57th UNGA on October 28, 2002. Available at http://secint04.
un.org/india/ind661.pdf, visited 4 December 2011.
43
Ibid.
44
Andrea Cornwall and Celestine Nyamu-Musembi, “Putting the ‘Rights-Based Approach’ to development into
perspective”, 25 Third World Quarterly (2004) 1415-1427, at 1424-25.
45
Goodale, “Locating Rights”, supra note 25, at 6.
6
level as well as on a more particular level, looking at proposed human rights-based
approaches to food security.
It should be noted that this study is not restricted to exploring the role of human rights law,
but rather that ‘human rights’ is seen as a phenomenon much broader than a formalistic and
legalistic understanding of the human rights concept would entail. We can distinguish
between internationally recognized human rights in legal documents and human rights in
social relationships and as cultural practice. Naturally there is no strict division between the
two, but having this picture in mind can help when reading my work. As the human rights
idea enters into development work, it is not only or even primarily in the shape of legal texts.
In human rights-based strategies for development, human rights ideas inform and inspire the
whole working process, and this process takes place in social relationships within
communities, families, households, workplaces and public spaces. This study is concerned
with the processes of ‘development’ that set out to claim and achieve human rights through
different channels. In this context, ‘the law’ and ‘legal’ has a social theory definition. Social
theory focuses on law as a ‘social process’ – not solely a text or formal legal structures.46
1.3 Literature on the ‘added value’ of human rights-based approaches to
development
This thesis is not limited to exploring the so called human rights-based approaches to
development cooperation but since the immediate need to answer questions on the ‘value
added’ by human rights has partly sprung from the growing popularity of such approaches
attention is devoted to whether human rights-based approaches make a difference. In this
overview, I will review what other authors have suggested in terms of the new and added
value of various human rights-based approaches to development.
The fact that the Vienna Declaration and Programme of Action of 199347 stressed the link
between human rights and development was a window of opportunity for further integration
of the two discourses. With the trend within human rights of embracing much broader
concerns for human dignity, such as access to resources (i.e., economic and social rights),
came the need among human rights groups to engage with development actors and with civil
societies and social movements.48
In the report Renewing the United Nations: A Programme for Reform, which was launched in
1997, the Secretary General made the following statement: “A major task for the future will
be to enhance the human rights programme and integrate it into the broad range of the
Organization’s activities, including in the development and humanitarian areas.”49 This
ambition gradually led to the so called Stamford consensus document of 2003 in which
46
Caroline Moser and Andy Norton, To Claim Our Rights: Livelihood Security, Human Rights and Sustainable
Development (Overseas Development Institute, 2001) at 21. This view has a bases in the anthropological concern
with ‘law as process’ aimed to get away from a concern with rules as such in order to focus on how those rules
were implemented or not. Olivia Harris, “Introduction”, in O. Harris (ed.), Inside and Outside the Law (London:
Routledge, 1996) 1-15, at 4. Critical social theory of law (with thinkers such as Bourdieu, Foucault and Gramsci)
tries to show the contribution of law to resilience and pervasiveness of domination in hegemonic and counter-
hegemonic processes. See Boaventura de Sousa Santos and César A. Rodríguez-Garavito, “Law, Politics, and the
Subaltern in Counter-Hegemonic Globalization”, in de Sousa Santos & Rodríguez-Garavito (eds), Law and
Globalization from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005) 1-
26, at 6.
47
Adopted by the World Conference on Human Rights, 25 June 1993.
48
Jethro Pettit and Joanna Wheeler, “Developing Rights? Relating Discourse to Context and Practice”, 36 IDS
Bulletin (2005) 1-8, at 2.
49
UN doc. A/51/950, 14 July 1997, para. 196.
7
participating agencies agree on a Common Understanding on a Human Rights-based
Approach to Development within the UN system.50
In early 2000, there was a debate between Peter Uvin and Hugo Slim about the potential of
further integration between human rights and development. Uvin stated that much of the
policy declarations and exhortations for the need for integration “risks being little more than
rhetorical, feel-good change, further legitimizing historically created inequalities and
injustices in this world.”51 While Uvin was very critical of this agenda, he did see a potential
in the so called human rights approach to development, in which “the mandate of
development itself may be redefined in human rights terms, potentially bringing about a
fundamental rethinking of the development paradigm itself”.52 In this ‘new paradigm’ the
boundaries between human rights and development would disappear, and both become
conceptually and operationally inseparable parts of the same process of social change.53 As he
saw very little evidence that this was taking place, Uvin’s conclusion was that there is less to
the emerging human rights approach in the development regime than meets the eye. He was
concerned that the status quo is not being challenged sufficiently.54 The question is whether
today there is more evidence to support the claim that hegemonic development is challenged
by human rights arguments.
We should keep in mind that the question of new dimensions and value added can be
approached from many different angles and perspectives. It can be looked at from the
perspective of either the development actors (donors, states, NGOs, etc) or the target groups
(‘beneficiaries’) of development aid.55 Clearly more studies have been devoted to the first
perspective rather than the second. I argue that the questions should be looked at holistically,
since whatever is changed in the practices of development actors also will have an impact on
target groups. However, it is more challenging to measure concrete benefits and impacts in
the lives of target groups compared to studying policy and practice of agencies and
organisations.
Uvin raised doubts whether further integration of human rights and development can have any
impact on donor practices and he claimed that it is merely rhetorical repackaging of ‘old wine
into new bottles’.56 Slim, on the other hand, identified potential in NGOs that have strong
links to marginalised groups and start basing their efforts on human rights-based approaches,
thereby supporting genuine struggles for rights.57 Hans-Otto Sano made a similar argument a
few years later. He claimed that human rights have become increasingly important as a source
of inspiration for local development efforts and for local advocacy.58 Examples of this are
presented in the Malawi case-study in part III.
50
The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among
UN Agencies, developed at the Inter-Agency Workshop on a human based approach in the context of UN
reform, 3-5 May 2003, Stamford. Available at http://hrbaportal.org/?page_id=2127, visited 10 May 2012.
51
Peter Uvin, “On High Moral Ground: The Incorporation of Human Rights by the Development Enterprise”,
XVII PRAXIS The Fletcher Journal of Development Studies (2002) 1-11, at 1.
52
Ibid., at 2. See also Peter Uvin, Human Rights and Development (Bloomfield: Kumarian Press, 2004).
53
Uvin, “On High Moral Ground”, supra note 51, at 6.
54
Ibid., at 10.
55
Hans-Otto Sano, “Does Human Rights-Based Development Make a Difference?” in Salomon, Tostensen &
Vandenhole (eds), Casting the Net Wider: Human Rights, Development and New Duty-Bearers (Antwerp:
Intersentia, 2007) 79-63, at 63.
56
Uvin, “On High Moral Ground”, supra note 51, at 2 and 4.
57
Hugo Slim, “A Response to Peter Uvin, Making Moral Low Ground: Rights as the Struggle for Justice and the
Abolition of Development”, XVI PRAXIS The Fletcher Journal of Development Studies (2002) 1-5, at 4.
58
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
8
In the struggle for rights, Sano believes that human rights-based approaches potentially can
“strengthen national strategies and social and political movements on account of a shared
foundation of norms and rights”.59 As will be seen in the chapter on rights-based approaches
in Malawi, it is, however, not very clear that the human rights concept always offers a shared
foundation.
There is, moreover, a risk of romanticising local NGO work in the area of human rights and
development. Paul Nelson and Ellen Dorsey remind us that NGOs invoke human rights as a
source of power; and in NGOs’ search for sources of power it is difficult to disentangle
organisational and principled political objectives.60 Srirak Plipat also finds evidence that the
potential of rights-based approaches is diminished because NGOs interpret and use these
approaches in ways that correspond with their organizational backgrounds and expertise.61
Nelson and Dorsey find more evidence of human rights playing a role in mobilization for
resistance against policy changes such as privatisation than of human rights arguments
succeeding in pressing governments to provide services more equitably, adequately and
effectively.62 Sano finds similar question marks and areas where it is difficult to show what
impact and value added human rights and human rights-based approaches to development
have. He finds it challenging to prove that poor and marginalised target groups achieve
improvements in their economic, social and political conditions through a human rights-based
strategy.63
It seems easier to show that human rights-based strategies bring in new dimensions to
advocacy on poor people’s claims in the form of right’s defence and promotion than to show
concrete improvements in the protection of rights of poor and marginalised individuals. The
interaction between legal standing and social mobilization around economic and social rights
has, according to Nelson and Dorsey, powerfully contributed to new rights (the right to
water), to new understandings of the implications of these rights, and to new strategies and
language for their promotion by NGOs outside of the historic human rights field.64 What is
less clear is the impact of these new strategies on achieving social change in favour of
disadvantaged people, either through the work of social movements or in development
programming.
Darrow and Tomas raise five interrelated points on what comparative advantage a human
rights-based approach brings to development programming: (1) a normative basis for values
and policy choices that otherwise are more or less negotiable; (2) a predictable framework for
action that is objective, determinate and defines the appropriate legal limits; (3) an
empowering strategy for the achievement of human development; (4) legal means to secure
redress for violations; and (5) a basis for accountability.65 The other authors referred to above
have raised similar points, but with less focus on accountability and redress. This argument on
59
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
60
Paul J. Nelson and Ellen Dorsey, New Rights Advocacy: Changing Strategies of Development and Human
Rights NGOs (Washington DC: Georgetown University Press, 2008) at 170.
61
Srirak Plipat, “Developmentazing Human Rights: How Development NGOs Interpret and Implement a Human
Rights-Based Development Policy” (Dissertation, University of Pittsburg, 2005) at 6. Available at
http://etd.library.pitt.edu/ETD/available/etd-02222006145152/unrestricted/Srirak_Plipat_2006_dissertation_ all_
chapters.pdf, last visited 26 January 2012.
62
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 182.
63
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
64
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 172.
65
Mac Darrow & Amparo Tomas, “Power, Capture, and Conflict: A Call for Human Rights Accountability in
Development Cooperation”, 27 Human Rights Quarterly (2005) 471-538, at 485-486.
9
the value added by the human rights framework was nevertheless raised early in the debates
on the human rights-approach to development assistance.66
I agree that the two first points are, in theory, what human rights-based approaches, as defined
e.g. in the so called Common Understanding among UN agencies,67 set out to do, but I am
hesitant to whether this is an advantage that can be generalised. While human rights violations
in the name of development should never be accepted, I question the value in having a
framework that is ‘objective’ and ‘determinate’ because this inevitably leads to top-down
approaches, an issue I will return to.
The forth point is quite straightforward, at least in theory. In practice there are many obstacles
for socially weak groups to seek redress for human rights violations. On the fifth point, it is
again, in theory, quite clear that human rights potentially function as a basis for demanding
accountability but from whom and in what forum is not at all straightforward, as will be
shown in the section on accountability. Similarly, the question as to whether human rights are
‘an empowering strategy of human development’ will be debated in chapter 2.4.7 and it
should be explored more deeply in further research. These questions should always be
answered in a specific context where political, legal, historical, and financial factors all play a
role.
In addition, Siobhán McInerney-Lankford sees that the answer to the question of ‘added
value’ of human rights discourse lies in the realm of accountability and obligations.68 She
notes that human rights should be integrated more systematically into development policy and
practice, inter alia, because human rights treaty obligations are legally binding States parties,
as a matter of public international law, and as such they should be respected in all contexts,
including development. The assumption, as expressed by McInerney-Lankford, is that
“greater reliance on human rights law might provide one effective way to promote a more
systematic, explicit and coherent approach to the integration of human rights in
development”.69 While valuing an emphasis on obligations, this thesis is concerned that a
legalistic approach is unrealistic and elitist in most Southern contexts and has little value on
the local level. I share Gready and Ensor’s concern about what they call the ‘legal reflex’
within human rights discourse, i.e., the assumption that the “resort to law is the most effective
and perhaps only form of protection and remedy”. This is not to deny the importance of the
law, but equal importance should be given to political and social processes in securing human
rights.70 In Nelson’s and Dorsey’s study, NGOs find that the political power of human rights
stems from their role in social movements while their legal power depends on their status as
internationally recognised legal standards. NGOs use human rights as a way of reframing
debates and as a tool for resisting neo-liberal economic norms and intellectual property rights.
66
See The Human Rights Council of Australia, The Rights Way to Development: A Human Rights Approach to
Development Assistance (The Human Rights Council of Australia, 1995); Birgitte I. Hamm, “A Human Rights
Approach to Development”, 23 Human Rights Quarterly (2001) 1005-1031.
67
Common Understanding, supra note 50.
68
Siobhán McInerney-Lankford, “Human Rights and Development: a Comment on Challenges and
Opportunities from a Legal Perspective”, 1 Journal of Human Rights Practice (March 2009) 51-82, at 53.
69
Ibid., at 52.
70
Paul Gready and Jonathan Ensor, “Introduction”, in Gready & Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 1-44, at 9. This is
also discussed in Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 66;
and Jeremy Holland, Mary Ann Brocklesby and Charles Abugre, “Beyond the Technical Fix? Participation in
Donor Approaches to Rights-Based Development”, in Samuel Hickey & Giles Mohan (eds), Participation: From
Tyranny to Transformation (London: Zed Books, 2004) 252-268, at 255.
10
At the individual level they use human rights as a source of empowering language and
concepts.71
Some argue that the main value added by so called human rights-based approaches to
development is that they can potentially re-politicize areas of development work.72 It is
argued that redefining development work as based on human rights claims rather than charity
or benevolence is not a neutral act. Poverty is not natural or inevitable but created by deep-
rooted or structural inequalities and unequal power relations. Moreover, it is the work of
politics to focus on underlying causes of poverty and to challenge asymmetries of power.73
As the political character of human rights in development is recognised, this creates the fear
that these approaches can be too interventionists. While the tension between the rights of
states and the rights of citizens, who may be oppressed within these states, is not new in
human rights debates, the expansion of human rights-based approaches in various shapes and
forms brings in new dimensions to these tensions. Uvin applauds “the move away from the
dominant reductionist and technical [development] approaches of the past”, but he recoils
from the “thought of the limitless intervention seemingly condoned if not morally justified by
the emerging agenda.”74 He fears that the legitimacy of the human rights standards may be put
into question as the West intervenes “ever more frequently but ever more inconsistently in the
affairs of other societies”.75 In order to deal with this fear, Uvin suggests a radical capacity
building approach, which entails a transfer of the power of initiative and conceptualization to
local actors.76 (See section on ‘alternative development’.) I suggest that an actor-oriented
perspective on human rights should be part of such a radical approach so that the local actors
also have the power to contribute to giving meaning to the human rights concept. When
human rights enter into development as ready-made concepts with predetermined goals this
stifles initiatives from local actors.
Uvin, McInerney-Lankford, Sano, and Gready and Ensor seem to agree that strengthening the
human rights perspective in development is not an answer to all the shortcomings of the
development enterprise. We should be clear about the limits of the overlaps between the two
fields. The relevance of human rights to development processes may not be generalized, nor
involve all human rights.77 Sano summarizes some critical perspectives on human rights-
based approaches to development with the statement that there is, inter alia, a risk of
exaggerating the strategy’s potential. This may occur especially in the area of transforming
power relations and when addressing the so called root causes of poverty.78 This thesis
supports the fact that there is reason to be careful in drawing conclusions on the role of human
rights in transforming power relationships, especially if more conventional definitions of
‘human rights’ are accepted. However, I find that these difficult questions cannot be avoided
when studying the potential transformative power of human rights in development. Human
rights have little value if they have no impact on the relationship between rights-holders and
duty-bearers. Similarly, if structural reasons for poverty and human rights failure are not
addressed human rights-based approaches will be used to maintain the status quo rather than
71
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 169-172.
72
Slim, “A Response to Peter Uvin”, supra note 57, at 3; Cornwall and Nyamu-Musembi, “Putting the ‘Rights-
Based Approach’”, supra note 44; See also Gready and Ensor, “Introduction”, supra note 70, at 23.
73
Gready, “Reasons to Be Cautious”, supra note 35, at 389-390.
74
Uvin, Human Rights and Development, supra note 52, at 195.
75
Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), at 19.
76
Uvin, Human Rights and Development, supra note 52, at 198.
77
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 58.
78
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 67 and 79.
11
challenging it. I agree with Gready and Ensor that an engagement with rights should stimulate
a political transformation rather than seeking only technical and quantifiable outcomes.79
The above summary of some of the attempts to answer the question regarding the possible
added value of human rights in development cooperation indicates the importance and need
for further research in this area. As will be shown in this thesis, and as has been shown by
other studies, it is clear that different actors use human rights in general, and human rights-
based approaches to development in particular, in various ways. Therefore human rights play
diverse roles in development, depending on the context and the actors involved. It is difficult
to make generalisations about, for instance, the so called added value of human rights-based
approaches as the question can only be answered in a specific context.
1.4 Purpose and assumptions
This thesis provides empirical data on the role, meaning, and value of human rights in the
effort to confer food security in Malawi. The purpose is to: (1) identify the role of human
rights, particularly the right to food, in three development efforts with the aim to strengthen
food security in Malawi; (2) identify what is characteristic of the three case studies
representing charity-based, rights-based and legal approaches to food security; (3) identify the
possible value added of human rights and principles that are said to come with them in these
efforts in terms of the transformative potential.
The assumption I had before going to Malawi to gather data for the analysis was that human
rights offer a new way of working, thus also adding value to ‘good development practices’, in
three interrelated ways: (1) human rights language changes the mindset of the actors in
development, underlining the legally binding nature of addressing food insecurity, and
contributing to empowerment of rights-holders; (2) human rights-based situation analysis
implies that a complete range of new and different questions, which have a basis in the
normative human rights framework, are raised in a development context; (3) human rights
offer a platform to demand accountability of duty-bearers. These assumptions were the
starting point when going into the field to collect data. The assumptions are presented here in
the way they were formulated in the early phase of the research process. When drawing
conclusions the assumptions are evaluated.
It is clear that many development organisations have realised the power of using human rights
language, and that by using this language they can increase the legitimacy of development.
Some would even argue that development agencies implement human rights-based
approaches only on a rhetorical level, changing the language of their programme description
documents but not the logic behind their work.80 This is perhaps true in some cases. The
assumption I had in the beginning of this research was, however, that human rights-based
approaches have potential to change the business of development on more than the surface
level. The shift to rights-based language, according to which poor people are ‘rights-holders’
instead of ‘beneficiaries’, may contribute to a sense of empowerment: efforts are made to
create an environment in which people can mobilise, express and raise concerns and
ultimately claim and realise their human rights.
The second assumption builds on the importance of careful situation analysis. When problem
analysis raises questions such as who is responsible for taking steps towards progressively
79
Gready and Ensor, “Introduction”, supra note 70, at 23.
80
See e.g. Emma Harris-Curtis, Oscar Marleyn and Oliver Bakewell, The Implications for Northern NGOs
Adopting Rights-Based Approaches (England: INTRAC, Occasional Papers Series No: 41, 2005) at 18.
12
realising the right to food and what obstacles are hindering these steps from being taken,
focus is directed to structural issues such as legislation and policy, power and politics, action
and non-action by institutions, exclusion and marginalisation as well as rights-holders’ lack of
possibilities to participate.81 One can say that the normative human rights framework gives a
road map for development, directing situation analysis (and therefore also the so called
interventions) onto a new path. Focus is shifted from short-term technical solutions (e.g.
service delivery) to promoting long-term structural change. It is especially useful to identify
the structural causes of food insecurity, i.e., to look beyond for instance drought, at issues
such as lack of access to livelihood resources, government social security, and other
entitlements, which could enable people to cope with natural disasters.82 This is related to the
entitlement dimension of human rights, meaning that human rights imply entitlements to
action by government.83 This second assumption is connected to one important element of a
human rights-based approach highlighted in the so called Common Understanding, i.e.,
identifying rights-holders (and their entitlements) and corresponding duty-bearers (and their
obligations) and working towards strengthening the capacities of rights-holders to make their
claims, and of duty-bearers to meet their obligations.84
The third assumption is that focus on holding duty-bearers accountable is what really makes
the human rights-based approach to development a new way of working.85 The implications
for addressing accountability, however, need to be investigated.86 Which actors are seen as
accountable to whom and on what grounds? What kinds of strategies are used to achieve
accountability?
The first assumption deals more with possible benefits for the rights-holders than for
development actors, although no strict division is made. The assumption is that when and if
rights-holders start demanding various services that are relevant to food security as a human
rights issue, duty-bearers are forced to deal with issue of food security as a matter of fulfilling
a human rights duty.87 This contributes to a sense of empowerment among rights-holders. The
analysis is not trying to measure possible tangible benefits for the poorest as this would
demand the use of quantitative methods in the form of socio-economic indicators.88
The question of demanding services and action from duty-bearers is related to the third
assumption about accountability. It is a question of relevance for both development actors and
beneficiaries. In most cases, beneficiaries are not in the position to demand accountability
from power holders on their own but need the support by local, national, and sometimes even
81
Similar list provided in Office of the United Nations High Commissioner for Human Rights, “Frequently
Asked Questions on a Human Rights-Based Approach to Development Cooperation”, 2006, at 27.
82
Supriya Akerkar, “Rights, Development and Democracy: A Perspective from India”, in P. Gready and J.
Enson (eds), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice
(London: Zed Books, 2005) 144-155, at 151.
83
George Kent, Freedom from Want: The Human Right to Adequate Food (Washington D.C.: Georgetown
University Press, 2005) at 93.
84
Common Understanding, supra note 50, para. 3.
85
Uvin makes the argument that concerns with mechanisms of accountability are what distinguishes charity from
claims. Uvin, Human Rights and Development, supra note 52, at 131. See also Amparo Tomas, “Reforms that
Benefit Poor People – Practical Solutions and Dilemmas of Rights-Based Approaches to Legal and Justice
Reform”, in P. Gready and J. Enson (eds), Reinventing Development? Translating Rights-Based Approaches
from Theory into Practice (London: Zed Books, 2005) 171-184, at 173.
86
Sano points out that “the demand for accountability during the last 15 years has not done very much to clarify
precisely where the accountability lies”. Sano, “Does Human Rights-Based Development Make a Difference?”,
supra note 55, at 72.
87
‘Services’ that are based on human rights entitlements can be interpreted broadly to mean material goods,
protection and respect. See Kent, Freedom from Want, supra note 83, at 93.
88
See Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 75.
13
international groups. The second assumption about the potential added value of human rights
in situation analysis has more to do with changing strategies in programming, and it could be
assumed that it is therefore more relevant for the development actor than for beneficiaries.
However, the analysis has shown that it is in fact rights-holders themselves that, with some
assistance, do this kind of analysis that then leads to mobilizing efforts to demand for changed
and improved practices. When fulfilled, these demands do bring tangible benefits for the
rights-holders, e.g. in the form of agriculture extension services, improved water outlets or
teachers.
All three assumptions try to pinpoint the transformative potential of human rights and a
human rights-based approach to development. Can human rights contribute to societal, legal,
and political change that strengthens the position/voice of the rights-holders?
1.5 The food security situation in Malawi
Malawi is commonly known among tourists as the Warm Heart of Africa. It is a landlocked
country south of the equator in Sub-Saharan Africa. Malawi is among the poorest countries in
the world, ranking 171 in the UNDP’s Human Development Index 2011,89 despite recent
annual growth rates of 6.8 percent (2004-2010).90
It is beyond doubt that food insecurity in Malawi is a chronic problem that is caused by a
complex web of factors, including diminishing farm size, weak access to markets, high
prevalence of HIV/AIDS, weak governance,91 and chronic poverty. Around 2005 about 52
percent of the population was living below the national poverty line and 22 percent were
classified as ultra poor who could not afford to meet the minimum standard for recommended
daily food requirement.92 According to UN sources this figure has not improved: the Human
Development Report 2011 reports that more than 52 percent of the population are affected by
multidimensional poverty,93 a concept that is reviewed in chapter 2.3.1 of this study. Forty-
four percent of children under five are chronically malnourished and around 20 percent are
unable to meet their minimum food requirements.94
The Welfare Monitoring Surveys (WMS) conducted by the National Statistical Office in
Malawi does, however, show a reduction in poverty from 50 percent in 2005 to 39 percent in
2009. This reduction took place over the implementation period of the Farm Input Subsidy
Programme (FISP) and may be due to the increase in maize production under FISP, but
analysts also speculate that the WMS is not reliable since it is based on imputed consumption
89
UNDP, Human Development Report 2011: Sustainability and Equality, A Better Future for All, at 126.
Available at http://hdr.undp.org/en/media/HDR_2011_EN_Tables.pdf, visited 30 August 2012.
90
Richard Mussa and Karl Pauw, “Poverty in Malawi: Current status and knowledge gaps”, International Food
Policy Research Institute, Policy Note 9, December 2011, at 1. Available at http://www.moafsmw.org/
ocean/docs/Research/masspn9-CurrentStatusOfPoverty.pdf, visited 14 September 2012.
91
Eunice G. Kamwendo, “Knowledge Review and Gap Analysis: Hunger and Vulnerability in Malawi”, a report
by Regional Hunger and Vulnerability Programme, July 2006, at 1 and 7. ‘Hunger’ is the inability to meet the
minimum daily recommended food requirement. Ibid, at 3. Available at http://www.wahenga.org/
news/news_item.php?news=88, valid as of 6 June 2008.
92
See Republic of Malawi, National Statistical Office, “Integrated Household Survey 2004-2005”, October
2005, at 138-139. The national poverty line is a subsistence minimum expressed in Malawi Kwacha and
comprised of two parts: minimum food expenditure based on food requirements and critical non-food
consumption.
93
UNDP, Human Development Report 2011, supra note 89, at 144.
94
UN Development Assistance Framework, UNDAF Malawi 2008-2011, at 11. Available at
http://www.unmalawi.org/reports/undaf/undaf_malawi_2008-2011.pdf, visited 20 August 2012. See also The
World Bank, Malawi Country Brief 2012. Available at http://web.worldbank.org/, visited 20 August 2012.
14
expenditures rather than actual values.95 The most recent Integrated Household Survey (IHS)
shows an improvement in welfare in terms of basic needs. While the second IHS (2005)
reported that almost 57 percent of households felt they had inadequate food consumption, the
report published covering the period of 2010-2011 indicates that this figure has fallen to 38
percent.96 The same report shows that poverty and food insecurity in Malawi takes on a
distinct gender dimension: 46.3 percent of female headed households reported inadequate
food while the same figure for male-headed households was 35.8 percent.97 Paradoxically,
women are the main food producers: about 70 percent of agriculture labour is carried out by
women.98
There is persistent lack of economic opportunity either to produce one’s own food through
subsistence farming or to exchange labour for an income that is needed to purchase adequate,
safe and nutritious food.99 There is a cycle of poverty where farmers lack input because they
do not have cash, so they work in other people’s fields (ganyu), and this leads to a situation
where the household suffers from a lack of labour.100 As an end result the household does not
have enough food
Numerous reports analysing the problem and possible solutions have been produced. In a
report from 1994, the problems discussed were low maize productivity, poor weather, and
population growth. Policy issues raised were land policy, marketing and pricing policy,
research and technology, agricultural input policies, and employment and wages policy.101 In
the Food Security Policy of 2006 many of these issues reoccurred: promoting irrigation was a
priority together with ensuring access to fertilizers. Land policy and the new Land Bill were
briefly referred to.102 On the operational level, the Ministry of Agriculture and Food Security
was working with no less than 45 policies.103 The Technical Secretariat within the Ministry
was coordinating 150 food security projects.104
During my interviews with representatives of relevant ministries, donors, and NGOs working
to improve food security, a long list of causes for the persistent hunger problem was given.
Lack of rain105 was mentioned by almost everyone as being one factor leading to the recurrent
food crisis situations facing Malawi in the past ten years. A typical statement was: “The cause
95
Mussa and Pauw, “Poverty in Malawi”, supra note 90, at 2.
96
Republic of Malawi, National Statistical Office, “Integrated Household Survey 2010-2011”, September 2012,
at 140. Available at http://www.nso.malawi.net/images/stories/data_on_line/economics/ ihs/IHS3/IHS3_
Report.pdf, visited 19 September 2012.
97
Ibid., at 143.
98
Asiyati Lorraine Chiweza, “The Challenges of Promoting Legal Empowerment in Developing Countries:
Women’s Land Ownership and Inheritance Rights in Malawi,” in Dan Banik (ed.) Rights and Legal
Empowerment in Eradicating Poverty (Surrey: Ashgate, 2008) 201-216, at 205.
99
Food Security Policy, produced by Ministry of Agriculture and Food Security, Malawi, August 2006, at 4.
100
It should be noted that in subsistence agriculture everyone depends solely on manual labour, there is almost
no use of animal power or tractors.
101
Louis A.H. Msukwa, “Food Policy and Production: Towards Increased Household Food Security”, Centre for
Social Research, March 1994.
102
The issue of land policy reform is sensitive in Malawi and during my interviews I was given conflicting
information as to its relevance for food security. A top official in the MoAFS argued that “land is not a major
issue in Malawi” (Interview No. 23 with Ministry of Agriculture and Food Security, Malawi, December 2006),
while officials involved in the reform made the opposite statements (Interview Nos. 25 and 34, Malawi,
December 2006. FSD2727.)
103
Malawi Agriculture Policy Framework: Logical Framework for Agriculture Sector Policy Documents, May
2006.
104
Field diary, notes from discussion with Adviser in Technical Secretariat, 12 December 2006.
105
During the past ten years at least five severe droughts have damaged the harvests.
15
of the food shortage was quite natural: the rains were not just there.”106 Only rarely did the
informant link past policy decisions to the food security situation in the country today (“this
problem is a result of accumulated effects of wrong actions, wrong decisions, wrong
policies”),107 thereby linking food shortages to the responsibility of those involved in deciding
on policies. This sort of shift in the awareness and analysis of the food insecurity problem,
away from seeing it as ‘natural’, would be critical when moving from a charity-based to a
rights-based approach to development, i.e. putting legislation, policy and practice in place that
supports the realisation of the right to adequate food. According to Amartya Sen famine is
always a social phenomenon and classifying famines into ‘man-made’ and ‘nature-made’ is
often misleading. Even when the prime mover in a famine is a flood or drought, what the
impact will be on the population would depend on how society is organised.108
Land policy (or the lack thereof) is one example of how food insecurity has been made worse
by past policy decisions. From independence in 1964 until 2002 there was no comprehensive
land policy in the country. During the 1970s and 80s, when tobacco growing was profitable,
land was continuously transferred from customary ownership to private tenure for the estate
sector, the result being a declining size in land holdings.109 Bias in favour of the estate
production has led to shortage of arable land in some regions. Failure to deal with land policy
has no doubt contributed to current problems of poverty, food insecurity, and inequalities in
access to arable land.110 Increased land fragmentation has contributed to a situation where
farmers with less than one hectare, which is more than half of all farmers,111 have been
identified as a category of food insecure households in need of special support.112
The problems created by unclear and non-existing policies were being addressed at the time
of the interviews as there was a land policy reform underway in 2006. A Special Law
Commission had reviewed all land related laws and drafted one comprehensive Land Act
based on the policy from 2002. The Land Bill was in the process of being reviewed in
Parliament at the time of my field research. One proposal was that all land, including
customary land, is privatized and titled.113 Sixty-five percent of the land in Malawi is
customary land that the ‘owner’ has the right to use but has not a formal title to,114 and
allocation of rights to such land is the responsibility of traditional leaders.115 The policy seeks
to encourage customary landowners to register land holdings as private customary holdings
with land tenure rights.116 It remains to be seen if these quite radical proposals will be adopted
as law, and what impact it will have on food security. This sensitive issue has taken many
106
Interview No. 33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
107
Interview No. 1 with Malawi Human Rights Commission, Malawi 2006. Also Interview No. 3 with donor,
Malawi 2006. FSD2727.
108
Sen and Drèze “Hunger and Public Action”, supra note 32, at 46.
109
Msukwa, supra note 101, at 5; Interview No. 25 with Ministry of Lands, Physical Planning and Surveys,
Malawi 2006. FSD2727.
110
Government of the Republic of Malawi, Malawi National Land Policy, January 2002, para. 2.4.2.
111
Ibid., para. 2.1.4.
112
United Nations, Common Country Assessment of Malawi, March 2001, at 8. Available at
http://www.undg.org/documents/1676-Malawi_CCA_-_Malawi_2001.pdf. See also Kamwendo, “Knowledge
Review”, supra note 91, at 5.
113
About 65 percent of all land in Malawi is categorized as customary land. Interview No. 25 with Ministry of
Lands, Physical Planning and Surveys, Malawi 2006; Interview No. 34 with Special Law Commission on Land
Reform, Malawi 2006. FSD2727.
114
Interview No. 25 with Ministry of Lands, Physical Planning and Surveys, Malawi 2006. FSD2727.
115
Malawi National Land Policy, supra note 110, para. 5.3.1.
116
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra note 98, at 209.
16
years to process and the Customary Land Bill, existing since 2010,117 had not yet been
adopted in 2012.
The human rights civil society in Malawi was not actively working on land-related policy
issues in 2006, despite the fact that land policy potentially has a considerable effect on food
rights. Olivier De Schutter, Special Rapporteur on the right to food, has pointed out that in the
context of increasing commercial pressure on land, it is essential from a human rights
perspective to improve the protection of livelihoods in rural areas by strengthening security of
tenure. However, he believes that an exclusive emphasis on individual titling, which is what
the Land Bill was proposing in Malawi, risks leading to the creation of land markets and
privatisation of common resources that are particularly vital for the most vulnerable members
of the communities.118 Case law concerning the right to property in Malawi has in fact
established that ownership of the beneficial interest in customary land is also protected –
contrary to the misconception that tenure in customary land is insecure.119
In Malawi maize is the staple food in most districts. People use maize meal to make porridge
(nsima) that is eaten every day in most households. For many people in the rural areas nsima
is food. Relish from vegetables, fish or meat is a supplement to nsima.120 Among educated
Malawians and expatriates you often hear diminishing expressions such as “Malawians are
spoiled, they want nsima three times a day and when the maize harvest is bad they complain
that they don’t have food even when rice would do the same job”.121 This and other similar
statements hint at the fact that rural Malawians can blame themselves for their food insecurity
problem because they simply do not value other staple foods such as rice, cassava, and sweet
potatoes. This is naturally not the case. However, decades of skewed policies aimed at
promoting white maize production have distorted production and consumption patterns, and
this has made Malawians vulnerable to chronic food deficits.122
Increased maize production has, since the 1960s been the main strategy for achieving the
objective of self-sufficiency in food production. As a consequence of this policy, maize
cropping has been introduced throughout the country and has become the dominant food crop
even in those areas that used to produce other crops. Agriculture extension workers have
largely focussed on promoting hybrid maize production and the use of fertilizers to the
neglect of other food crops and extension strategies. Small-holder land allocated to growing
maize increased from 58 percent in 1980/81 to 70 percent in 1990/91.123 Out of all
agricultural households 97 percent cultivated maize in Malawi in 2005.124 Over-reliance on
maize is a problem that is today recognised both by the government as well as by donors and
117
The Customary Land Bill is amended to the Report of the Law Commission on the Review of Land-Related
Laws, 9 April 2010.
118
Olivier De Schutter, “The Emerging Human Right to Land”, 12 International Community Law Review (2010)
303-334, at 323-324.
119
See Danwood Mzikenge Chirwa, “A Full Loaf is Better than Half: The Constitutional Protection of
Economic, Social and Cultural Rights in Malawi”, 49 Journal of African Law (2005) 207-241, at 222.
120
Civil Society Agriculture Network, “The People’s Voice!” A Community Consultation Report on Malawi
Food and Nutrition Security Policy Formulation Process, Lilongwe, Malawi, 2004, at 7. (The report is with the
author.) From my own group interviews it was also clear that producing enough maize to fulfil the consumption
needs of the family is what is considered important for food security.
121
Field diary, Malawi, 2006. Similar statements in Interview No. 30 with donor; Interview No. 15 with Church
and Society. FSD2727.
122
Stephen Devereux, “State of Disaster: Causes, Consequences & Policy Lessons from Malawi”, a report
commissioned by Action Aid Malawi, June 2002, at 6. Available at http://www.actionaid.org.uk/_
content/documents/malawifamine.pdf, visited 14 May 2012.
123
Msukwa, supra note 101, at 4 and 12-14.
124
Integrated Household Survey 2004-2005, supra note 92, at 96.
17
NGOs trying to improve food and nutrition security. Promoting alternative crops together
with diversification is, however, challenging due to decades of public information on the
importance of producing maize.125
Agricultural liberalisation measures have hit rural Malawi hard. Until the mid-1990s,
smallholder farmers enjoyed subsidies on fertilizers and hybrid maize seeds, but farmers in
the early 2000s worked in a very different policy environment. Before liberalisation farmers
could also access cheap credit and sell their produce at supported prices to the Agricultural
Development and Marketing Corporation (ADMARC). By 1996, fertilizer and hybrid maize
seed had been removed and agricultural markets had been liberalised. Smallholders faced
deteriorating terms of trade, volatile markets, and scarce credit.126 In the liberalised, non-
interventionist context, ‘bad’ maize production years became normal. Since the mid-1990s,
the only good years have been those when there have been large-scale interventions to boost
food production. Various such interventions have been implemented over the years by the
government and with the support of donors, known as the Starter Pack and the Targeted Input
Programme.127
The presidents that followed the one-party regime of President Kamuzu Banda (1966-
1993),128 Bakili Muluzi and Bingu wa Mutarika, implemented policies to remedy the previous
biases against smallholder agriculture.129 Following the election of Mutharika as President in
2004, the government decided to implement a radically different input programme, moving
towards a general (not targeted) subsidy.130 The President had publicly placed great
importance on the FISP as a key strategy of the country’s agricultural policy and is considered
the most influential actor in this context.131 In 2004/05 the government provided two million
smallholder farmers with packs of 25 kg of fertilizers, 5 kg of maize seed and 1 kg of
legumes, in addition to distributing vouchers for buying fertilizers to 500,000 smallholders.132
The voucher programme targeted economically active farmers who could afford to buy
subsidised fertilizers at 950 kwacha. During my stay in Malawi the FISP was a very topical
issue, and almost every day news papers raised issues of alleged corruption and
mismanagement. Due to these and other reasons donors have been reluctant to support
subsidies. They have, however, accepted targeted subsidies for the poorest farmers and in
2006 the EU, DFID and NORAD supported a seed component of the subsidy programme.133
125
Interview No. 3 with donor, Malawi, 2006; Interview No. 35 with international NGO, Malawi 2006.
FSD2727.
126
Sarah Levy, “Introduction”, in S. Levy (ed.), Starter Packs: A Strategy to Fight Hunger in Developing
Countries? Lessons from the Malawi Experience 1998-2003 (Cabi, 2005) 1-11, at 6.
127
Ibid., at 2 and 4.
128
Dr. Hastings Kamuzu Banda led Malawi (formerly Nyasaland) to independence. In 1970 he became Life
President. In 1993 he was forced to stand down, four years before his death. See chapter 3.1.
129
Klaus Droppelmann et al., “All Eggs in One Basket: A Reflection on Malawi’s Dependence on Agricultural
Growth Strategy”, International Food Policy Research Institute Discussion Paper, April 2012, at 16. Available at
http://www.ifpri.org/publication/all-eggs-one-basket, visited 1 September 2012.
130
Levy, “Introduction”, supra note 126, at 6. The Farm Input Subsidy Programme can be seen as President
Mutharika’s flagship programme, a programme that was implemented against fierce donor resistance. See
Blessings Chinsinga, “Can Subsidies Last in Malawi”, The Africa Report, 17 July 2012. Available at
http://www.theafricareport.com/index.php/soapbox/can-subsidies-last-in-malawi-501815522.html, visited 20
August 2012.
131
Noora-Lisa Aberman et al, “Mapping the Contemporary Fertilizer Policy Landscape in Malawi”,
International Food Policy Research Institute Discussion Paper, August 2012, at 12. Available at http://www.ifpri.
org/publication/mapping-contemporary-fertilizer-policy-landscape-malawi, visited 10 September 2012.
132
Levy, “Introduction”, supra note 126, at 6.
133
Interview No. 23 with Ministry of Agriculture, Malawi 2006. FSD2727. All donors interviewed were careful
to underline that their support to the subsidy program is designed in a manner to stimulate the private sector. E.g.
Interview No. 3 with donor, Malawi 2006. Since 2006, the government used private sector agricultural dealers as
18
Needless to say, the subsidy programme is hugely popular in Malawi.134 The country has
experienced an increase in national maize production in the period of 2006-2010, moving
from chronic food deficits to the point of exporting maize to neighbouring countries.135
In 2012, following the sudden death of President Mutharika, one of the key questions being
asked is whether the change in government will also bring changes to the major policies such
as the FISP. The new head of state, Joyce Banda, who was Mutharika’s vice president, has
already expressed commitment to the continuation of the programme. Analysts do not see this
as surprising, considering that Malawi’s agricultural production depends on some form of
subsidy to smallholder farmers. Blessings Chinsinga writes that “subsidies have become more
or less an integral part of the social contract between the government and citizens.” Maize
subsidies are at the core of Malawi’s politics.136
The year 2012 is a challenging year in terms of food security in Malawi. The Malawi
Vulnerability Assessment Committee (MVAC) reports that more than 1.6 million people will
need food assistance. As many as 15 out of 28 districts are affected by dry spells and
deteriorating food security. The recent devaluation of the national currency by 49 percent,
together with a high inflation, has produced sharp increases in food prices and living costs.137
This is the context in which the three projects to be analysed operate: a country that suffers
from chronic food insecurity and deep structural problems that create hunger.
1.6 Data and method
1.6.1 Research strategy: Analysis of three approaches
This study applies qualitative social science methodology. The goal is the same as in
empirical social science in general: to explain and understand observed social phenomena.
The aim is to understand the meanings, processes, and context138 in which human rights and
development are integrated; to explain the role of human rights and human rights principles
within these contexts; and to identify what is characteristic of ‘good development practice’,
human rights-based approaches as well as legal approaches to development.
In part III, the objects of enquiry are three food security projects in Malawi and the aim is to
understand and explain the role of human rights and human rights principles within these
projects, and to identify what are the characteristics of charity-based, rights-based and legal
approaches. It is also important to understand the processes and contexts in which they
operate. The analysis of the three food-related projects in Malawi takes place in a specific
locality, context, and timeframe, and this cannot be disregarded. For instance it is of relevance
to be familiar with the history of the human rights movement in Malawi, especially during the
transition from an authoritarian regime to a multiparty form of government, in order to
well as state-owned outlets for distribution of fertilizers and seeds. See DFID, “A Record Harvest in Malawi”, 8
May 2007. Available at http://www.dfid.gov.uk/casestudies/files/africa%5Cmalawi-harvest.asp, visited 14 May
2012.
134
The New York Times, “Ending Famine, Simply by Ignoring Experts”, 2 December 2007, available at
http://www.nytimes.com/2007/12/02/world/africa/02malawi.html?scp=1&sq=Ending+Famine&st=nyt., visited 8
May 2012. Similar statements in Interview No. 23 with Ministry of Agriculture, Malawi 2006. FSD2727.
135
Droppelmann et al., “All Eggs in One Basket”, supra note 129, at 16.
136
Chinsinga, “Can Subsidies Last in Malawi”, supra note 130.
137
WFP News: “WFP Gears Up Food Relief for Thousands in Malawi”, 13 July 2012. Available at
http://www.wfp.org/news/news-release/wfp-gears-food-relief-thousands-malawi, visited 27 August 2012.
138
Todd Landman, Studying Human Rights (London: Routledge, 2006), at 3 and 72.
19
understand the role human rights play in society today. Naturally, it is also important to know
the food security challenges that Malawi is facing. The thesis tries to capture the rationale for
choosing a specific approach to intervene in food insecurity and the role human rights play in
this picture.139 The study does not, however, attempt to give an over-arching analysis of the
cause-and-effect processes of food insecurity in Malawi in general or to evaluate the
effectiveness and effects of the programmes.140
The strategy for providing an answer to the main research questions about the role and added
value of human rights in food security efforts is an analysis of three food-related projects.
This strategy is empirical in the sense that evidence about what is taking place in these three
projects is collected.141 The analysis provides in-depth knowledge of the three cases studies
and therefore I have no ambition to draw generalized conclusions based on the data acquired
in the field. However, the data may provide theoretical insights, in this case related to the
assumptions made before embarking on the field research, which help in understanding the
role of human rights in development on a general level.142 Data for the analysis has been
collected through semi-structured individual interviews and group interviews conducted at the
end of 2006. In addition to analysis of the interviews carried out during the field research,
policy documents as well as other written material concerning the programmes are critically
reviewed. Due to the difficulty of obtaining written material from Malawi after the end of the
field research the study only gives a superficial follow-up of the projects.
The three food-related interventions in Malawi represent different approaches to development
and food security: (1) supporting food security through food-for-asset (representing charity-
based approaches); (2) supporting food security through demanding accountable services
from duty-bearers as a matter of rights (representing rights-based approaches); (3) supporting
legislation on the human right to food (representing legal human rights approaches). The
assumption is that human rights play a role in all of these approaches, but what that role is
differs and so do the interpretations of the so called human rights principles. The point in
making such a comparison is not to play these approaches against each other (‘charity/needs
vs. rights’) but instead highlighting that if and when needs are seen as a matter of fulfilling
human rights (‘needs as rights’) this has certain implications. The process should look
different if needs are dealt with as an human rights issue compared to cases where fulfilling
needs is seen as ‘charity’ or a ‘favour’.
The first object of inquiry is the food-for-asset component of the food assistance programme
called the Joint Emergency Food Aid Programme (JEFAP) by the World Food Programme
(WFP) and its NGO partners. What is characteristic of this approach is that service delivery
(food commodities distributed in exchange of asset creation) is based on targeting needs, and
the delivery of the assistance is based on charity rather than entitlements. The aim is to
identify the rationale behind distributing food assistance, and the principles according to
which programmes are managed, not to evaluate the effectiveness in reaching the intended
beneficiaries.
139
Compare with “General Introduction: Context and Challenges for Combining Methods in Development
Research”, in Jeremy Holland with John Campbell (eds), Methods in Development Research: Combining
Qualitative and Quantitative Approaches (United Kingdom: Centre for Development Studies, 2005) 1-18 at 3.
140
Evaluation research typically intends to assess the effects and effectiveness of something, for example a
policy or service, applying qualitative or quantitative methods. See Colin Robson, Real World Research (UK,
Blackwell Publishing, second edition 2002) at 202.
141
Ibid., at 179.
142
Robson, Real World Research, supra note 140, at 177 and 183. See also David Silverman, Doing Qualitative
Research (London: Sage Publications, Second edition, 2005) at 126-127.
20
The second programme that is analysed is Shire Highlands Sustainable Livelihoods
Programme (SHSLP) implemented by Oxfam and local government institutions. It is seen as
representing ‘rights-based approaches’ because it makes more inspirational use of human
rights than a normatively-based human rights approach. Integrating a rights-based approach,
which started in 1999, has according to Oxfam, meant working at the institutional level to
“stimulate the supply of rights and services” and at the community level to “generate
awareness of and demand for these rights and services”,143 but without linking this language
to international human rights instruments. My aim is to identify challenges in applying
‘rights-talk’, i.e. demanding accountable and transparent services as a matter of rights and
obligations, not as a favour, in a very resource-constrained environment.
The third project chosen for the analysis is the Right to Food Project implemented by Church
and Society together with a loose network of other civil society organisations. The project is
seen to represent a ‘legal human rights approach’ since its main focus is on putting legislation
in place that will guarantee duty-bearer responsibility and avenues for accountability.
Through analysing the project, it is possible to study the possible added value, and the
challenges facing this kind of a normative approach; an approach that is strongly rooted in the
international human rights framework.
Malawi was chosen because of its prevalent food security problems and because I was
familiar with the policy framework in the country from previous research on the human
rights-based approach to development in the context of food security and HIV/AIDS.144 There
are many benefits in having all three case studies in the same country. In addition to logistical
and practical benefits in carrying out field research, it also meant that all three projects
functioned in the same political, social, economic, and legislative environment. However, the
three projects chosen for the analysis are very different in terms of number of beneficiaries
and staff members, budget, and not the least in terms of the assumed importance given to
human rights. They also operate on different levels of society: while the Right to Food Project
lobbies on behalf of national legislation, operating on the national level in a political
environment, the two other projects operate on the district and local levels. There are different
external factors inhibiting the projects and this is taken into account in the analysis.
It is clear that the projects cannot be compared with each other – and I analyse the three
projects for different reasons. I deliberately choose projects that have a varied approach to
food security, and it was a conscious choice that only one of the projects claims to apply a so
called rights-based approach to development. I assumed that through analysing one food
assistance project that represents a ‘conventional’ approach to hunger it would be possible to
determine if there is any difference in how certain principles, common to ‘good development
practice’ and human rights, are applied in this approach compared with the other two projects
that both claim to apply these same principles. The purpose of the analysis of the food
assistance project is to have a starting point, or baseline, of what is the role of human rights in
a conventional charity-based approach. It is argued that it is impossible to know whether new
ways of doing ‘development’ has any transformative effects before one is familiar with the
situation that proceeded the rights-based and human rights-based approaches. Moreover, food
assistance has traditionally played an important role in Malawi and it is still distributed every
year. Since WFP is an important actor in Malawi the JEFAP programme was chosen.
Naturally, it also played an important role that it was possible to reach WFP staff before the
143
Oxfam, “Integrating Rights into Livelihoods Programme: A Case Study of Shire Highlands Sustainable
Livelihoods Programme”, Malawi (project document that is with the author).
144
Alessandra Lundström Sarelin, “Human Rights-Based Approaches to Development Cooperation, HIV/AIDS,
and Food Security” 29 Human Rights Quarterly (2007) 460-488.
21
field research and that they agreed to meet me in Lilongwe during the first days of my stay in
Malawi.
At first I thought that analysing a ‘conventional’ food aid project and a livelihoods project that
identifies itself as rights-based would already provide me with some answers about the role of
human rights and so called human rights principles in these two different approaches.
However, when I saw a small article about the Right to Food Project in Malawi in a document
published by FIAN145 the idea to have a third project that is implemented by human rights
NGOs instead of developmental organisations was conceived. In this way the analysis would
also be able to see possible differences in the two discourses of development and human
rights, which traditionally have been operating side by side with hardly any cooperation, at
least in Malawi. Although I had little information about the Right to Food Project before
going to Malawi I decided to take a risk and try to set up a sufficient number of interviews
with project stakeholders. Church and Society, that heads the Right to Food Project, agreed to
be part of the analysis.
1.6.2 Data collection: Semi-structured individual interviews and group interviews
A field research trip to Malawi was conducted in November-December 2006 to gather data
for the analysis. During the field visit I was affiliated with the Centre for Social Research at
the University of Malawi. The method for data collection was semi-structured interviews,
combined with group interviews. Semi-structured interviews means that I used an interview
guide146 with some predetermined questions and areas to cover, but during the interview I also
raised new questions while omitting others because of lack of time or because they seemed
inappropriate with a particular informant.147 In semi-structured interviews it is common to
incorporate more highly structured sequences (e.g. to obtain factual biographical material) but
since such personal data plays no role in my research there was no need for this.148 Moreover,
I wanted to underline the importance of dialogue and encourage the informants to elaborate
on their views. In preparing for the interviews I benefited from Steinar Kvales extensive work
on both the theoretical as well as practical aspects of qualitative interviews.149 My interview
guide included firstly some introductory comments, covering the purpose of my research in
general and the interview in particular and secondly a list of topics and key questions to ask
under each project.150 Questions directed to people involved in all three projects focused on
the rationale for the approach chosen in the particular project, and how human rights fit or do
not fit into this rationale. The meaning of the concepts non-discrimination and focus on
vulnerable groups, participation, accountability and empowerment was raised in the majority
of the interviews. In addition to the common set of questions, project-specific questions were
also raised. At the end of the interview I indicated that I had no further questions and gave the
informant the opportunity to raise any issues he or she had been thinking about.
145
Carole Samdup, “Promoting the Human Right to Food in Malawi” in Voluntary Guidelines on the Right to
Adequate Food: From Negotiation to Implementation, FIAN-Documents g47e/2006, at 15. Available at
http://www.sarpn.org/documents/d0002164/FIAN_right_to_food_2006.pdf, visited 14 May 2012.
146
Robson uses the concept “interview schedule” for the semi-structured interview but “guide” is more
appropriate for my purposes as the aim of the predetermined questions was not to determine the timing or
sequencing of the questions but rather to set the general framework of topics of be covered in the conversation.
147
Robson, Real World Research, supra note 140, at 270. See also Britha Mikkelsen, Methods for Development
Work and Research (New Delhi: Sage Publications, second edition, 2005) at 169 and 171.
148
Robson, Real World Research, supra note 140, at 278.
149
See Steinar Kvale, InterViews: An Introduction to Qualitative Research Interviewing (California: Sage,
1996).
150
Compare with Robson, Real World Research, supra note 140, at 278.
22
I conducted 34 interviews with project personnel, government representatives, NGO staff,
donors, and other relevant project stakeholders. Altogether 47 informants were interviewed.
The majority of semi-structured interviews were on an individual basis but on a few occasions
two or three people participated.151 Individual interviews lasted about 45 minutes, while group
interviews with two or three people took over one hour. The group interviews with rights-
holders lasted one to two hours, depending on the number of people participating. The
language spoken in the group interviews was Chichewa, and I used an interpreter. All other
interviews were in English. Notes were taken during and after every interview and
observations were written down in a field diary. This was also useful as sometimes informants
shared useful information after the tape recorder had been turned off.
The majority of the informants were men – only 15 informants were women. This gender
imbalance is due to the fact that most government officers and NGO staff members are men.
The greatest gender imbalance was in interviews for the analysis of the Right to Food Project.
All individual interviews were with men and it was only in one group interview that I had the
chance to talk to (three) women.
Four group interviews with beneficiaries or rights-holders were organised. The discussion in
these settings was not focused on only one particular topic and therefore it was not a focus
group. Focus groups are group discussions with the purpose of addressing and exploring a
specific topic in detail, e.g. people’s views and experiences of contraception.152 Moreover,
focus groups are distinguished from the broader category of group interviews through
explicitly using group interaction as research data.153 It is also typical for focus groups that
people participating are more or less homogenous, e.g. a group of widows, although opinions
on this vary and heterogeneous groups are also used.154 In my group interviews, the
discussion covered a broad area and it was directed partly by my questions and partly by the
interests of the participants. In the analysis of the data obtained from the participants. I do
take group interaction and internal power relations into account but the study of these factors
was not the main purpose of the interview.
In group interviews participants may be invited, i.e., sampled, or random in the way that
participants are those who happen to be around at the time of the interview.155 In my case I
did not have any influence over the selection of participants in the group interviews. This can
be seen as a challenge from the point of view of wanting to ensure an equal representation by
all groupings in the village, including so called vulnerable groups such as widows, people
living with HIV/AIDS and people with disabilities. On the other hand, random selection can
have benefits in terms of excluding possible researcher bias. Two groups interviews were
organised when visiting the SHSLP and the other two (separate for men and women) were
held as part of the analysis of the Right to Food Project. The first two groups were mixed in
the sense that people participating came from diverse backgrounds. The group interviews in
which men and women were interviewed separately were more in the style of focus groups, as
all participants were members of Church and Society in the Mulanje District. However, in this
case the participants also came from diverse social backgrounds. Due to practical challenges it
151
The typical interview is one-to-one and face-to-face, but it can take place in a group setting. Robson, Real
World Research, supra note 140, at 270.
152
Mikkelsen, Methods for Development, supra note 147, at 173; Jenny Kitzinger, “The Methodology of Focus
Groups: The Importance of Interaction Between Research Participants”, in A. Bryman & R.G. Burgess (eds),
Qualitative Research, Volume II (London: Sage Publications, 1999) at 138-155, at 138.
153
Kitzinger, “The Methodology of Focus Groups”, supra note 152, at 138.
154
Robson discusses the benefits of homogenous and heterogeneous groups, see Real World Research, supra
note 140, at 286.
155
Mikkelsen, Methods for Development, supra note 147, at 172.
23
was not possible to organise an interview with beneficiaries of the food-for-asset component
of JEFAP. Instead, questions concerning food assistance were raised with participants in the
other groups.
The first group interview with rights-holders was held in a village in the Mulanje District.
People in the villages usually work in their fields in the morning so I was advised by Oxfam
to visit the village in the afternoon. Oxfam had informed the village about my visit. I arrived
together with one officer from the Community Development office and one staff member of
the human rights NGO Malawi CARER (Centre for Advice, Research, and Education on
Rights), who also acted as my interpreter. As we arrived we were greeted by the village
headman. He showed us into a brick house that is used for adult literacy classes and other
common activities for the villagers. Inside the house I met a group of about ten men and
women.156 I shook hands with everyone. Then the village headman said a word of welcome in
Chichewa, to thank everyone for attending. After this there was a short prayer. Then it was
my turn to explain why I had arrived and what I wanted to talk about, i.e., express my interest
in learning about the structures in the village, the outside support from government
institutions and NGOs, the on-going development activities and the challenges villagers are
facing. I also raised some questions about rights as I knew that the Malawi CARER had been
educating villagers on rights issues. The village headman was the first to talk and answer my
questions. While he was talking the others did not participate in the discussion. When I raised
a question about the Village Development Committee a male member of the committee
replied. From this point the others in the room also participated in the discussion. A young
woman from the Village Rights Committee was active in giving replies and she also
explained about the activities of this committee.
The set-up for this discussion with the rights-holders had a number of weaknesses. First of all
it is clear that it was mostly the village headman and people with a position within an elected
body who were talking. This is a typical problem in group interviews and focus groups. The
benefit, on the other hand, is that participants tend to provide checks and balances on each
other, i.e. there is a kind of natural quality control.157 However, I cannot claim to have the
view of, for instance, vulnerable groups. Secondly, the presence of the officer from
Community Development and Malawi Carer, both of which are partners in the Shire
Highlands programme, might have made people prone to speak only favourably of the
programme activities. It is naturally impossible to make sure people were being honest and
not only saying what they thought I wanted to hear. This is a general human tendency and
anyone, no matter how powerful or powerless, has been in a situation where he or she is
trying to assess what the person asking questions really wants to hear. Statements such as
“gender balance is important”, and the use of development buzz words such as “capacity
building” made me careful when drawing conclusions based on this group interview. Thirdly,
it is difficult to assess the accuracy of the translation from Chichewa to English and from
English to Chichewa. These concepts might be the choice of the interpreter rather than the
informant. The ideal situation is to have a professional outside interpreter but due to practical
challenges such as time constraints, long distances and a limited local network (as this was in
the beginning of my field trip) this was not possible.
The second group interview was the following afternoon in a village in the Thyolo District.
When I arrived together with two staff members from Development Broadcasting Unit (DBU)
that coordinates the Radio Listening Club in the village, a crowd of 10-15 villagers greeted us
156
Opinions on the optimum size of the group vary but figures of eight to twelve are usually held suitable.
Robson, Real World Research, supra note 140, at 285.
157
Robson, Real World Research, supra note 140, at 284.
24
with singing and dancing. They wanted to share the song that they use in the radio
programmes they make. The atmosphere was full of pride for the village and the common
activities, especially the Radio Listening Club that currently was making a programme about
the misuse of fertilizer coupons. The villagers were very well prepared for my visit and my
impression was that this was not the first time they received visitors from foreign countries.
The man from the DBU interpreted. Again a strict protocol was followed during the opening
of the discussion. The difference here was that while the headman of the previous village
played an active role in the opening ceremony, this time all three village heads (two men and
one woman) were sitting at the other side of the room and not taking active part in the
discussion until later. After the praying and all the opening statements and introductions there
was a short play about farming and the challenges faced by farmers performed by a small
group of women and men. Then elected members from the Village Development Committee,
the Village Rights Committee and the Radio Listening Club explained about the work these
committees carry out in the village. After these general introductions I had the opportunity to
direct specific questions to individuals from the committees and the village headmen. At one
point I also indicated I would like to have an answer from everyone in the room. Towards the
end of the session I encouraged the villagers to ask question of me and we concluded by
comparing farming in Finland and Malawi.
The weaknesses in this second group interview are the same as in the first: not having an
outside interpreter, not being sure that the presence of village headmen is not intimidating
others and the difficulty to get all the people to participate in the discussion. My impression
was, however, that the statements made were honest and frank and people were not trying to
give a too rosy picture of the Shire Highlands Programme or the Radio Listening Club. Many
women were also active in the discussion but the problems raised were not as gender specific
as was the case in the forth group interview that was for women only. A common challenge in
all four group interviews was to clearly communicate to the participants that I was not
representing a donor or any development agency and that I was not in a position to decide
about funds or the future of the programme. Being a white, European, academic woman
visiting a village for a short while naturally effects the information shared with me. It would
be naïve not to see that people were hoping to obtain some benefits from my visit and
therefore also trying to please me as much as possible. The research interview was in this case
not a conversation between two equal partners.158
The third and forth group interviews took place at Mulanje Mission with members of a local
branch of Church and Society. It transpired to be a good decision to have separate interviews
with men and women. Although this was a much smaller group interview than the previous
two and the people interviewed were not direct ‘beneficiaries’ of the Right to Food Project it
can still be argued that they, as local members of Church and Society, represent ‘rights-
holders’. It should also be noted that the Right to Food Project does not have any direct
beneficiaries and this was as close as I could come to talking to people who were not staff
members from NGOs involved in the project. The discussion was useful as it revealed the
limited role of local activists in the Right to Food Project. At the same time, I had the chance
to take up food security issues such as fertilizer coupons, land policy, food assistance, the role
of local duty-bearers and power structures in villages with people who were in a considerably
less privileged position than NGO staff. The fact that these people all lived in Mulanje, where
Oxfam’s Shire Highlands programme was implemented made the discussions even more
relevant as this gave me additional information about the specific challenges in the
programme area.
158
Kvale, InterViews, supra note 149, at 6.
25
When the interview started it was only me with two men from the Church and Society Board.
Ten minutes later a third person, who happened to be part of the local elite, joined us. It was
noticeable how the other two men became silent as the third man started talking in English
instead of Chichewa. My driver was interpreting when the discussion switched back to
Chichewa again. It soon became clear that none of the men had much information about the
Right to Food Project and the atmosphere was a bit tense as it seemed it was embarrassing for
them to admit they had no idea what I was asking about. The atmosphere improved again as I
started asking about other Church and Society activities in Mulanje and general food security
problems. For example, they showed me civic education material about human rights that
Church and Society had used when conducting rights training with members of the Church.
This was useful as I could see rights issues were taken up also outside Church and Society’s
main office in Blantyre.
During the discussion with three female members of Church and Society I was given an
insight into these women’s lives. The atmosphere was intimate and open. The presence of my
male driver, who interpreted, did not seem to prevent these women from sharing stories with
me. I heard about everything from violence against women in the families to how young
orphan girls working on the tea plantations sell sex to male employees. The women told me
how they work in the fields, how they get advice from extension workers and struggle to get
coupons to buy subsidized fertilizer, knowing that most of the coupons go into ‘deeper
pockets’. The loud laughter following my question if there is anything they can do about
corruption revealed what they thought of this a naïve question. Some of the women had also
received goats and seed from NGOs and their opinion was that assistance coming from NGOs
works better than from village chiefs. At the same time the women tried their best to help
orphans in the area, taking care of them with food, soap, and blankets, even taking them to
school. The trusting and intimate atmosphere in which all three women felt comfortable to
express their views made it the most useful group interview in providing information about
the overall context and challenges concerning food security and human rights in Mulanje.
When studying multiple cases it is crucial to set the boundaries of the study, i.e., to define
aspects of the cases that are feasible to study within the time and means at hand. The question
of who to interview (sampling) can have a considerable impact on later analysis. Qualitative
researchers usually focus on a small sample of people compared to quantitative researchers
who aim for larger numbers and seek statistical significance. Qualitative samples also often
have more purpose than being merely random.159 I set the boundaries of the case studies early
on as I decided not to study every aspect of the programme but instead focus on the particular
area that related to human rights issues. The boundaries for each project were a little different
because the assumed role of human rights was different. For example, in the SHSLP I was not
interested in learning about the seed component of the programme but instead I focussed on
how rights issues have been integrated into the programme through rights training, radio
listening clubs, and cooperation with the Labour Office and the trade union. This also helped
to narrow down the people to interview.
In JEFAP my focus was broader and more general as I was not sure what the role of human
rights would be but after my initial interviews I made the choice to narrow my focus down to
the food-for-asset aspect of the overall programme. This choice was based on the perception
that principles non-discrimination, participation, empowerment and accountability play a
larger role in this context compared to schemes in which food given as direct assistance.
159
Matthew B. Miles and A. Micheal Huberman, Qualitative Data Analysis (London: Sage Publications, 1994,
second edition), at 27.
26
With regard to the Right to Food Project, which is much smaller in scope, and focuses purely
on the right to food, the question of setting boundaries was not a significant issue. The
ambition was to interview as many relevant stakeholders of the project as possible, but being
aware that it is not possible to cover everyone and some kind of selection had to be made.
This selection was more or less random in that it was the circumstances (e.g. who picked up
the phone that moment I called to set up the interview) that dictated the final selection rather
than a detailed list of people to be interviewed that had been prepared well in advance. (This
also holds true for the other projects as well.) Time constraint and conditions in Malawi did
not permit the following of any detailed plan but instead the situation was lived each day.
After each interview I considered who else should be interviewed in order to cover different
aspects of the programme and to avoid bias.
The Right to Food Project had a rather ‘elite approach’, with limited input from ‘the
grassroots’, and this is reflected in those individuals I interviewed (mostly male leaders of
NGOs). The aim was to obtain an overview of the characteristics of settings and processes
within the programme. This means the people themselves were secondary.160 In fact, I did not
know anything about the people to be interviewed in advance of the interview and he or she
was selected based on his/her role in the programme, not their personal capacity. In addition
to interviewing representatives of stakeholders to the projects, I also decided to speak to
people who were familiar with either the projects or had insight into the substantial issues that
I was trying to learn about, i.e. food security challenges, land policy, the human rights
movement in Malawi, NGOs trying to work with a rights-based approach, etc. This proved to
be a good opportunity not only to learn about the context in which the projects operate in
Malawi but also to get contrasting and comparative information about the phenomenon of
rights-based approaches in Malawi. For example, I have learned to be much more critical of
NGO, donor and government reports. Moreover, talking “with people who are not central to
the phenomenon but who are neighbors to it” can help in ‘de-centring’ oneself from a
particular way of viewing the cases.161
1.6.3 Ethical issues
During any research process ethical issues will arise. In field research, the issue of how to
approach the informants and what kind of information about the overall research project to
supply is constantly on the researcher’s mind. In order to be certain about having the informed
consent and voluntary participation of the informants it is first of all necessary to inform the
research subjects about the overall purpose of the research. Secondly, any possible risks and
benefits from participating in the interview should be raised.162 Depending somewhat on the
interview setting I devoted more or less time to explaining the purpose of my research in
general and why I had chosen to study the three programmes in Malawi in particular. I did
this already when approaching the informant for the first time by phone and then in more
detail before the start of the actual interview. When approaching the three implementing
organisations WFP, Oxfam and Church and Society through e-mail before going to Malawi I
also sent my research plan so that the overall aim of the research would be clear from the
beginning. In the case of the present research, I failed to see any risks with participation from
the perspective of the individual informant and therefore the issue was not raised when
approaching them. For the three implementing organisations WFP, Oxfam, and Church and
Society there is naturally the risk of being criticised. A potential benefit is, on the other hand,
160
See Miles and Huberman, Qualitative Data Analysis, supra note 159, at 33.
161
Ibid., at 34.
162
Kvale, InterViews, supra note 149, at 112.
27
to obtain an outsider’s analysis of the programme that can be used in internal policy
development.
A second ethical issue is that of confidentiality, which implies that private data identifying the
informants will not be reported.163 With permission, interviews were recorded on tape after
handing over a statement guaranteeing the anonymity of the informant. I explained that I
would use interview numbers instead of names when referring to interview data. On two
occasions consent to use a tape recorder was not given and then I relied on writing notes.
When reporting on the results I have chosen to indicate if the informant represents civil
society, the government or a donor. With regard to interviews with the three implementing
organisations I use their names in my reporting. I also indicate which government department
has been interviewed. In some cases I only refer to the anonymous ‘NGO’ or ‘donor’. The
nature of the information given in the interviews is not as such sensitive or personal but as the
number of NGOs and donors is so limited in Malawi it would in theory be possible to identify
the name behind a specific statement, therefore, this was the only way to guarantee
confidentiality. When interviewing donors some information concerning the relationship
between the donor and Malawi Government arose that can be regarded as sensitive and in this
case the informant specifically asked that I would not report this piece of information. During
group interviews with rights-holders sensitive issues such as power relationships and
corruption often occurred , and I have also reported on that, but in this case there is no way to
find out the identity of the informants.
1.6.4 Analysis of interview data
All tape recorded interviews have been transcribed. The quality of the recording varies;
sometimes there is heavy rain on a tin roof, sometimes the informant’s speech is unclear and
this has made the full transcription difficult. Altogether I have more than 200 pages of
interview data, which is still a manageable quantity for the purpose of analysis. Analysis of
the interview data started already in the field as I had the habit of listening to every interview
the same evening as the interview took place, and writing a short summary in my field
research diary. Below is an example of what a summary could look like.
1993-94: Malawi went through a transition but not transformation
Dualist legal system, but duties not taken all the way: legal challenges for
implementing the right to food
Other challenges on the community level, still fear to talk of rights and demand
accountability
Duty-bearers blank in terms of seeing their work in a rights context
Influx of human rights NGOs around 1994, but a lot of missed opportunities.
Preaching the language of rights but no integration them into people’s livelihoods.
Rights need to be integrated into the official documents of the service providers
Reason for RBA: development agencies see that development projects are not
sustainable
Accountability not taken all the way up (CARE), work with health centres but do
not go to the district or central level
NICE project has changed its approach this year from education on rights to
“walking all the way” with communities seeking for remedies, taking different
issues all the way, to central government if necessary.164
163
Kvale, InterViews, supra note 149, at 114.
164
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
28
Through using this diary I was able to write down observations that were useful for the
analysis and when developing questions to be raised in up-coming interviews.
I use the empirical data to understand how the actors in Malawi give meaning to concepts
such as human rights, participation, discrimination, accountability, and other key concepts and
principles used in development and human rights work. This is a constructivist view.165 I also
make some generalisations to show trends within the broad phenomenon of interaction
between human rights and development in the field of food security. In this context, I use my
own interpretations. As interpretation requires at least some key concepts to guide the
selection of relevant information,166 I have chosen to focus on concepts that are characteristic
of human rights-based approaches (HRBAs).
When analyzing qualitative data, the researcher has to move, in the interpretative analysis,
between theory and empirical social facts in a way that often reshapes the theoretical ideas as
well as her view of the empirical data.167 In my case I started with an assumption about the
role and added value of human rights in food security, then I collected my data, and as I
started to analyse and interpret the data I also started to formulate some theoretical ideas.
There has been a constant interplay between theoretical ideas (explanations) and empirical
data.
When I started the transcribing process I had the habit of highlighting interesting passages and
sentences. I did the writing of the first draft analysis parallel with transcribing. Before writing
the conclusions I read through all relevant interviews again and highlighted relevant words
and sentences. In the interviews, I have been looking for statements that support and/or
question my assumptions about the role and added value of human rights in food security
efforts. I have also focussed on how the informants give substance and meaning to the five so
called key principles of a human rights-based approach to development. When writing the
analysis I let the data speak for itself through using quotations. The contact persons from the
three organisations have been given the opportunity to comment on the draft analysis before it
was presented at any academic seminar.
In social research method text books, a long list of different approaches to analysis of
qualitative data are usually identified and described. What analytical approach is chosen by
the researcher depends on the purpose of the analysis. A key issue is to be explicit about the
chosen method of analysis when reporting on the results. It is also important that the
researcher is conscious of how qualitative data can be interpreted differently and that
interviews will always contain an element of interpretation.168 As noted, the possible
approaches to analysis are diverse but there are, however, recurring features such as coding
the data; adding comments and reflections; going through the materials trying to identify
similar phrases, patterns, themes, relationships, etc; gradually elaborating a small set of
generalizations that cover the consistencies in the data; and linking these generalizations to a
formalized body of knowledge in the form of theories.169 The overall aim is to look for
meanings and understanding. There are no strict formulas for analysing qualitative data as is
the case with analysing quantitative data – but this does not mean that there are no guidelines
165
See Klotz and Lynch, Strategies for Research, supra note 1.
166
Klotz and Lynch, Strategies for Research, supra note 1, at 21.
167
Allaine Cerwonka, “Nervous Conditions”, in Allaine Cerwonka & Liisa H. Malkki, Improvising Theory:
Process and Temporality in Ethnographic Fieldwork (Chicago: The University of Chicago Press, 2007) 1-40, at
15.
168
Mikkelsen, Methods for Development, supra note 147, at 180.
169
Robson, Real World Research, supra note 140, at 459.
29
to assist in qualitative analysis.170 Constructive advice can be found in e.g. Miles and
Huberman, who advocate a systematic approach to qualitative analysis,171 and in Kvale’s
writings on what methods can be used to organise the interview texts.172
For the purpose of the analysis of the interview data from Malawi I have found that coding is
the most useful approach. Coding of qualitative data means organising the raw data into
conceptual categories and creating themes or concepts, which are later used to analyse data.173
The themes and concepts I use are based on my assumptions and research questions.174 I
categorised data under the following headings: express linkage to rights, non-discrimination
and focus on vulnerable groups, participation, empowerment, accountability, self-reliance,
charity/favour, politics, policy issues, service providers, duty-bearers, rights-holders, and
power structures. These labels are then attached to phrases, sentences, or whole paragraphs in
my interview data. Codes are used to retrieve and organise data so that I can quickly find,
retrieve, and cluster the segments relating to a particular research question, assumption, or
theme.175
In order to display the interview data in an organised fashion I placed sentences that have
been coded into charts before drawing final conclusions.176 This functioned as a verification
process, testing the validity and reliability of my conclusions. When displaying data in a chart
it was easier to confirm if an explanation is plausible and if I have sufficient evidence to
support it.177
1.6.5 The question of validity in analysis of qualitative data
A common challenge in qualitative social research is how to assess whether the conclusions in
a study that are based on qualitative evidence are valid, i.e., are the findings meaningful,
relevant, ‘true’?178 This is an epistemological question: what can we know, and how do we
know what we know? There are, of course, different epistemological positions.179 Qualitative
methods are sometimes dismissed as unscientific, subjective, unreliable, and invalid. This is
especially the case when qualitative methods in general and qualitative data analysis in
particular are judged against common criteria of validity, as developed for psychometric tests.
In positivist social science, validity is based on whether a method measures what it is
intended to measure.180 According to Kvale, it is clear that “[i]f the concept of validity is
confined to quantitative measurements, then research, aiming at qualitative descriptions and
interpretations of meaning, is by definition not a valid scientific method.”181 However,
qualitative methods may achieve a valid scientific practice when validity is seen as a broader
concept, implying to what extent a method investigates what it is intended to investigate, i.e.,
170
Mikkelsen, Methods for Development, supra note 147, at 181.
171
Miles and Huberman, Qualitative Data Analysis, supra note 159.
172
Kvale, InterViews, supra note 149.
173
Mikkelsen, Methods for Development, supra note 147, at 181.
174
As recommended in Miles and Huberman, Qualitative Data Analysis, supra note 159, at 58.
175
Miles and Huberman, Qualitative Data Analysis, supra note 159, at 56-57.
176
Ibid., at 91 and 93.
177
See Robson, Real World Research, supra note 140, at 476.
178
Klaus Bruhn Jensen, “Discourses of Interviewing: Validating Qualitative Research Findings Through Textual
Analysis”, in S. Kvale (ed.), Issues of Validity in Qualitative Research (Lund: Studentlitteratur, 1989) 93-108, at
93.
179
Mats Hårsmar Understanding Poverty in Africa? A Navigation through Disputed Concepts, Data and
Terrains (Uppsala: Nordiska Afrikainstitutet, 2010) at 9.
180
Steiner Kvale, “To Validate is to Question” in S. Kvale (ed.), Issues of Validity in Qualitative Research
(Lund: Studentlitteratur, 1989) 73-92, at 73-74.
181
Ibid., at 74.
30
to what extent our observations reflect the phenomena of interest to the researcher. Qualitative
research has then the power to reflect and conceptualise the nature of the phenomena
investigated and can capture the complexity of the social reality.182
When discussing what is valid, true knowledge in social science one inevitably runs into the
philosophical question of what truth is.183 Social science is concerned with social reality that
is constructed through people’s opinions, experiences and judgments. The interview data I
analyse represent the subjective opinions, reflections, and views of the informants in question,
and therefore it is not possible to find one objective truth behind the data. Instead of one
‘absolute truth’ there are multiple subjective narratives of what is taking place in the three
food security projects in Malawi. The interview conversation is able to capture the multitude
of views on a theme.184
Hermeneutics deal with interpretation of social meaning – as opposed to naturalistic research
methods searching for casual laws through the gathering of data by observation and
experiment.185 An interpretative process of knowledge production has always existed in the
social sciences and humanities, so this is not a new phenomenon.186 However, hermeneutics
does not always apply the same notion of ‘truth’ as the naturalistic position, that views truth
as corresponding to reality. Moreover, hermeneutics claims that scientific inquiry is always
interpretative.187 This is the position in this research. In this interpretative mission, when
reading a text or listening to someone, the researcher should forget all her preconceptions
concerning the content. She should, in the words of Gadamer, “remain open to the meaning of
the other person or text”. This kind of openness and sensitivity involves neither “neutrality”
nor the “extinction of one’s self”, but rather being aware of one’s own bias, so that what is
being interpreted can present itself in all “its otherness” and thereby present its own truth
against the researcher’s own preconceptions.188
It is clear that the interview as a research method directly violates a positivist conception of
science as interview data consist of meaningful statements, which are based on interpretations
so that data and their interpretations are not strictly separated. Here we must keep in mind that
quantified knowledge is not a goal of interview research, instead the main research findings
are expressed in language. Language is neither objective or universal, nor subjective or
individual, but intersubjective. Additionally, the interview is intersubjective instead of a
purely objective or subjective method.189
With regard to the language used in part of my interview data, especially where the informant
had a similar educational and professional background as I have, it is clear that we share the
same language of the ‘human rights expert’. The informant uses the same jargon and semi-
technical language of rights and duties, the same concepts of accountability and
empowerment. These are concepts I wanted to understand in the particular context of a project
in Malawi. This means that the ‘analysis’ is already taking place during the interview, as the
informant is helping me to analyse what is happening in the project and what role human
rights play in it as well as in Malawian society and politics overall.190 I am interested in
182
Kvale, “To Validate is to Question”, supra note 180, at 74 and 83.
183
Ibid., at 75.
184
Kvale, InterViews, supra note 149, at 7.
185
Mats Hårsmar Understanding Poverty in Africa? A Navigation through Disputed Concepts, Data and
Terrains (Uppsala: Nordiska Afrikainstitutet, 2010) at 9-10.
186
Allaine Cerwonka, “Nervous Conditions”, supra note 167, at 19.
187
Hårsmar, Understanding Poverty in Africa?, supra note 179, at 10.
188
Hans-Georg Gadamer, Truth and Method (London: Continuum, second, revised edition of 2004) at 271-272.
189
Kvale, InterViews, supra note 149, at 62 and 66.
190
Thank you Professor Jeremy Gould for pointing this out to me.
31
understanding how these concepts are used and interpreted within the different projects, by
the different actors, and through listening to my informants giving meaning to these concepts
I am learning precisely that. I acquire information about how they want me to think they apply
the concepts; how they try to instil empowerment in the people they work with. They offer me
their story about what empowerment should be – and that reveals to me how different actors
in the human rights community, the development/relief community, and the organisations
where these two communities have come together as a rights-based approach (RBA) have
different interpretations of these concepts. I can relate this to theories, and help in
understanding the ideological differences these stories display.
What can be done to validate the findings that are based on interview data is to check the
credibility of knowledge claims. We do not need to ‘check’ or validate the story given to us in
the interview against ‘one truth’ but instead ask why this story is relevant now, what does it
reveal? As put by Kvale: “Validation becomes investigation, continually checking,
questioning, and theoretically interpreting the findings.”191 Theory helps in understanding the
reality that is reflected in the interviews.
1.6.6 Summary
In this chapter I have made an effort to describe and problematise the various steps I have
taken in the research process of the empirical section. Secondly, I have described the research
strategy I have chosen in order to find an answer to my main research questions. In this
context I have also explained why and how I have chosen the three food security programmes
that are the object of enquiry. Thirdly, I have described the steps in data collection and the
main challenges in using interviews as a research method. Ethical issues are part of these
challenges. Finally, I have described my approach to the analysis of the qualitative data. I
conclude by problematising the issue of validity in the analysis of qualitative data.
1.7 Thesis outline
Before presenting the analysis of the empirical data it is necessary to outline what is meant by
key concepts such as development, human rights, human rights-based approaches to
development and food security as well as human rights principles in general. This helps us to
understand the three case studies from Malawi. Therefore, the second part of this study is a
critical conceptual analysis that reviews how these concepts relate to agency and change. It
starts with a review of the meanings given to ‘development’, introducing the major
development schools and exploring what kind of ‘development’ is striven for in human rights
approaches. It moves on to critically reviewing the human rights concept itself. Thirdly, it
explores the relationship between food rights, food security and livelihoods. It reviews what
meaning has been given to the right to food by international legal experts, by activists and, as
an example, by national legal actors in India. Finally, the role and meaning of five selected
‘human rights principles’ in development is critically analysed. This is necessary in order to
understand what difference human rights make as they enter into development programmes
and projects, what new elements are brought in, and what value is added. The overall purpose
of part II is to give theoretical explanations as to how these concepts have been defined by
various actors in various contexts as well as answers to the general questions concerning the
transformative potential of human rights in development practice and food security posed in
part I. In this way we can understand the role of these concepts in food security in Malawi.
191
Kvale, “To Validate is to Question”, supra note 180, at 77 and 78.
32
Part III is a case study, based on empirical data, from Malawi. It starts with an overview of
human rights discourse in Malawi. It then moves on to analysing the three projects, starting
with a food assistance programme, that represents a classical charity-based response to food
insecurity, then analyses a rights-based sustainable livelihoods programme and lastly a
conventional human rights project that is working with a legal approach. Finally, the
assumptions are reformulated as conclusions.
33
PART II CONCEPTUAL ANALYSIS
2.1 Review of the meanings attached to ‘development’
Gro Harlem Brundtland noted in her forward to the influential report Our Common Future of
1987 that “the word ‘development’ has been narrowed down by some into a very limited
focus, along the lines of ‘what poor nations should do to become richer’, and thus again is
automatically dismissed by many in the international arena as being a concern of specialist, of
those involved in questions of ‘development assistance’”. Brundtland challenges this
assumption and suggests a common sense definition of development as something we all do
in attempting to improve our lot.192 As much as I like this definition, for the purpose of this
thesis, I need to first of all explain and elaborate on the usage of the term ‘development’
during the last half century in development discourse. Second, I need to make clear what kind
of ‘development’ is in focus in human rights-based approaches to development. Development
for whom? Development of what? What is the objective of development?
2.1.1 Why ‘development’?
Looking back at the early days of the ‘development era’ that emerged after the Second World
War, Gilbert Rist points out that there might well have been hesitation about the right term for
the many different practices designed to increase human well-being. ‘Civilisation’ was a term
widely used until the end of the First World War and it could have been taken up again.193
(Rist also argues that colonisation was seen as philanthropic in that it held a worldwide
promise of civilisation for all, and it was seen as an expression of solidarity, something which
resembles the rhetoric of the modern development discourse.)194 ‘Westernisation’ could have
been chosen to highlight the origins of the implicit model; and ‘modernisation’ also had its
supporters. In the end, however, it was ‘development’ that gained most support.195
The way in which the term development has been used in the era after World War II is related
also to the term ‘underdevelopment’, which was introduced by President Truman in 1949.
‘Underdevelopment/development’ suggested that there is a final stage and the possibility of
bringing about a change in order to achieve it. It was then perceived to be possible to
‘develop’ a region; as opposed to things just ‘developing’. Rist writes: “This ‘development’
took on a transitive meaning (an action performed by one agent upon another) which
corresponded to a principle of social organisation, while ‘underdevelopment’ became a
‘naturally’ occurring (that is, seemingly causeless) state of things.”196
According to Gasper, we see the following four major types of usage of ‘development’ in
development studies literature: (1) development as fundamental or structural change; (2)
development as intervention, action; (3) development as improvements, ‘good change’; (4)
development as the platform for improvement, that which enables or allows improvement.
192
The World Commission on Environment and Development, Our Common Future (Oxford: Oxford University
Press, 1987) at xi.
193
Gilbert Rist, The History of Development: from Western Origins to Global Faith (London: Zed Books,
English edition 2002) at 25.
194
Ibid., at 51.
195
Ibid., at 25.
196
Ibid., at 73. Emphasis in original.
34
The two last categories are more ‘evaluative’ in the usage of the word.197 A commonality
among the many usages of ‘development’ is denoting enhancement, i.e., increasing value or
desirability – which naturally is subjective. What is ‘good change’ for an agribusiness might
not be good for a landless peasant, etc. Development as a concept is used by those who
promote the interest of the affluent and by those who would serve those less affluent.198
When we speak of different ways of defining development, and what differentiates them and
what they have in common, a word of caution is needed, according to Rist. These definitions
are all based upon the way in which one or many individuals picture the ideal conditions of
social existence. These pictures are often inviting and desirable, and nobody can say it is
illegitimate to dream of a more just world where people are happy, live healthier and longer,
are free of poverty, exploitation and violence. It is fairly easy to assemble a broad consensus
around such unchallengeable values. However, says Rist, “if ‘development’ is only a useful
word for the sum of virtuous human aspirations, we can conclude at once that it exists
nowhere and probably never will!”199 Nevertheless, ‘development’ does exist, through the
actions that it legitimates, through institutions that are dealing with development efforts. It is
very real that there are development projects, development cooperation, development
ministers, UN agencies for development, development banks, NGOs furthering development,
and many other institutions and activities with similar aims. In the name of development all
sorts of activities are undertaken: schools and clinics are built, wells dug, roads laid, children
vaccinated, oversight institutions established, reports drafted, experts hired, trade liberalized,
and much more. Every modern human activity can be undertaken in the name of
development.200
This thesis is concerned with the activities that are undertaken in the name of development
cooperation, specifically those that are claimed to support human rights and food security.
Therefore, it is essential to be aware of the ways in which the thinking of different institutions
and schools of development defines the desirable outcome of the activities carried out for
further ‘development’.
2.1.2 The economic growth and human development schools
In the crudest usage, development is seen as the same as economic growth, or GDP per
capita.201 Over time economists have been largely preoccupied with GDP as a measurement
of economic growth, along with other abstract concepts such as saving and investment and
exports and imports. A lack of recognition has been given to people as an end result of
development, and there has been a general confusion about ends and means.202
Under the leadership of Pakistani economist Mahbub ul Haq (1934-98), the annual Human
Development Reports (published since 1990) made a breakthrough in the campaign to see
development as more than economic growth. The evolution towards ‘human development’
had, of course, been gradual, and in addition to ul Haq, the Indian economist and philosopher
197
Des Gasper, The Ethics of Development (Edinburgh: Edinburgh University Press, 2004) at 28.
198
Jan Knippers Black, Development in Theory and Practice: Paradigms and Paradoxes (USA: Westview Press,
second edition 1999) at 15.
199
Rist, The History of Development, supra note 193, at 10. Emphasis in original.
200
Ibid., at 10-11.
201
GDP stands for Gross Domestic Product and measures the value of goods and services produced by a national
economy over a year. Gasper, The Ethics of Development, supra note 197, at 28.
202
Mahbud ul Haq, Reflections on Human Development (New York: Oxford University Press, 1995), at 4-5.
35
Amartya Sen (1933-) also played a considerable role in the development of the concept. Sen
integrates many of his insights under the label ‘development as freedom’.203
Since the introduction of the concept of ‘human development’, it is generally accepted that the
real purpose of development is to enlarge people’s choices in all fields. Economic growth or
income increase is one of many choices people make, but it is not the only one.204
Paradoxically, human development thinking came to the fore around the same time as there
was a switch from state to market in the name of neoliberalism, according to which the central
objective – economic growth – is to be achieved through structural reform, deregulation,
liberalisation, and privatisation.205 These two dominant development schools with different
objectives and also with different agendas concerning how to reach them have existed side by
side ever since. By the end of the 1990s, the World Bank, known for promoting development
as being understood and measured in economic and monetary terms, now underlined the
human development aspect.206
However, economic development thinking remained, and still is, influential, and people are
not at the centre of development policy and planning in many countries. As an example of the
strong role that economic development still plays, it can be mentioned that official
development assistance (ODA) is defined by the Organisation for Economic Co-operation and
Development as “those flows to countries and territories on the DAC List of ODA Recipients
and to multilateral development institutions which are […] administered with the promotion
of economic development and welfare of developing countries as its main objective”.207 This
means that in development cooperation, the main objective is economic development of
nations.
It is important to understand the difference between the economic growth and human
development schools. The defining difference is that the first focuses on the expansion of one
choice only – income – while the second takes on board all human choices, be they economic,
social, cultural or political. It can be argued that economic growth can enlarge all other
choices as well. However, it is important to understand that this is not necessarily true. There
is simply no automatic link between income and human lives. There are many reasons why
income expansion may fail to enlarge human options. National priorities may lead to uneven
income distribution; the use of income is just as important as the generation of income.
Moreover, knowledge, health, a clean physical environment, political freedom and enjoyment
of life are not exclusively, or largely, dependent on income. National wealth can increase
people’s choices in these areas – but they might not.208 Wealth is a means, not an end. Ul Haq
writes “unless societies recognize that their real wealth is their people, an excessive obsession
with creating material wealth can obscure the goal of enriching human lives.”209
However, this does not mean that growth is not important in the human development school.
Rejecting an automatic link between growth and flourishing human lives is not rejecting
growth itself. Economic growth is held important in poor societies for reducing or eliminating
poverty. What is essential to keep in mind is that the quality of growth is just as important as
203
Gasper, The Ethics of Development, supra note 197, at 164-165. See Amartya Sen, Development as Freedom
(Oxford: Oxford University Press, 1999).
204
ul Haq, Reflections on Human Development, supra note 202, at xvii.
205
Pieterse, Development Theory, supra note 2, at 6.
206
The World Bank, “Beyond Economic Growth”, 2000, at 8. Online book available at http://www.worldbank.
org/ depweb/beyond/beyond.htm, visited 14 May 2012.
207
Development Assistance Committee DAC, “Factsheet: Is it ODA?”, November 2008. Emphasis added.
Available at http://www.oecd.org/dataoecd/21/21/34086975.pdf, visited 14 May 2012.
208
ul Haq, Reflections on Human Development, supra note 202, at 14-15.
209
Ibid., at 15.
36
its quantity. This means conscious public policy is needed to translate economic growth into
human growth. This may require restructuring of economic and political power, far-reaching
land reform, progressive tax systems, new credit systems, a major expansion of basic social
services to reach all the deprived population, etc. The human development paradigm claims to
question the existing structure of power. In the human development model, the policy
interventions naturally vary from country to country depending on the circumstances but what
is common to all of them is that people are moved to the centre stage. Each development
activity is analysed to see how much people participate in it and benefit from it.210
There must be a search for models of development that enhance human life, not
marginalize it; treat GNP growth as a means, not as an end; distribute income
equitably, not concentrate it; replenish natural resources for future generations,
not destroy them; and encourage the grass-roots participation of people in the
events and processes that shape their lives.211
The human development ‘definition’ of development is normative in the sense that it
represents the UNDP’s vision of what it hopes development to be. The formula of ‘enlarging
people’s choices’ does not mean very much: the process is open (it leads to the ‘expansion of
possibilities) and is in principle unlimited. It also assumes the existence of ‘stages of
development’, just like any economic theory.212
2.1.3 Defining development and poverty in human rights approaches
The meaning of development in human rights thinking
What kind of understanding of development is the basis for human rights-based approaches to
development? It is clear that human rights-based development is concerned with people as
rights-holders and claim-makers. Moreover, as Nowak points out, full realisation of human
rights is replacing economic growth as the ultimate goal of the development process.213 The
human rights-based approaches to development and the right to development are two distinct
but yet intertwined phenomena and it is useful to look at the right to development discourse in
order to understand what a human rights perspective on development means. The right to
development discourse has given this much more thought than what is standard in various
human rights approaches to development, where development as a concept is often taken to be
a given.
It might be interesting to note that already by 1977 the Commission on Human Rights
requested that the Secretary General would undertake a study into the international aspects of
the right to development, which was being debated in the UN at the time. In this report,
published in 1979, the Secretary General set forward an analysis, based on major UN
instruments and debates, on which elements needed to be part of the concept of
210
ul Haq, Reflections on Human Development, supra note 202, at 16.
211
Ibid., at 117.
212
Rist, The History of Development, supra note 193, at 208-209.
213
Manfred Nowak, “A Human Rights Approach to Poverty”, in M. Scheinin & M. Suksi (eds), Human Rights
in Development Yearbook 2002 (Leiden: Martinus Nijhoff Publishers, 2005) 17-35, at 18. Nowak claims this
happens for “the first time” but this is an overstatement. Growth as a goal for development has been criticized
since the 1970s and “replaced” by many alternative models ever since.
37
development.214 This meaning of development has striking resemblance with human
development and is also outlines what we today know as human rights-based principles:
(i) The realisation of the potentialities of the human person in harmony
with the community should be the central purpose of development;
(ii) The human person should be the subject not the object of development;
(iii) Development requires the satisfaction of both material and non-
material basic needs;
(iv) Respect for human rights is fundamental to the development process;
(v) The human person must be able to participate fully in shaping his own
reality;
(vi) Respect for the principles of equality and non-discrimination is
essential; and
(vii) The achievement of a degree of individual and collective self-reliance
must be an integral part of the process.215
Once development is seen to contain these elements, it is obvious that it is not a concern only
for ‘developing countries’ but for every nation. The relationship between economic growth
and the well-being of the individual, problems of non-participation in decision making, and
environmentally unsustainable policies216 are only a few issues that were mentioned as
examples of problems being relevant to all societies in 1979 and remain so still today. In the
above list, there is no talk of the realisation of human rights being the objective of
development and also in other ways the definition of development has more in common with
the human development philosophy, underlining the importance of the realisation of the
potentialities of the human person, than modern discourse on the right to development.
The Declaration on the Right to Development was finally adopted in 1986, and here human
rights are seen as instruments of change,217 implying that everybody has the right to a process
of change which is compatible with the human rights norms listed in human rights treaties.218
One can say that development is defined as ‘good change’, and ‘good change’ is defined as
being compatible with human rights norms.
Many countries of the South hoped to link the development discourse with the human rights
agenda through the adoption of the UN Declaration on the Right to Development in 1986. The
Declaration was, however, adopted with a certain degree of hesitation among the so called
developed countries.219 Its legal and political status (a non-legally binding instrument as it is)
has remained controversial.220 However, the Declaration opened up for debate on issues of
214
Commission on Human Rights, report by the Secretary-General on the international dimensions of the right to
development, in para 26. UN doc. E/CN.4/1334, 2 January 1979. See also Gready and Ensor, “Introduction”,
supra note 70, at 18.
215
Report by the Secretary-General on the international dimensions of the right to development, supra note 214.
216
Ibid., para 25.
217
Theo van Boven, “The Right to Development and Human Rights”, 28 The Review (1982) 49-56 at 50.
218
Peris Jones and Kristian Stokke, “Introduction” in P. Jones & K. Stokke (eds), Democratising Development:
The Politics of Socio-Economic Rights (The Netherlands: Koninklijke Brill NV, 2005) 1-38 at 5. See also Arjun
Sengupta, The Right to Development, Report by the Independent Expert on the Right to Development, UN doc.
E/CN.4/2000/WG.18/CRP.1, para. 4.
219
The United States voted against the resolution and eight other OECD countries abstained. See Arjun
Sengupta, “On the Theory and Practice of the Right to Development”, 24 Human Rights Quarterly (2002) 837-
889, at 844.
220
Anja Lindroos, The Right to Development (Helsinki: The Erik Castrén Institute of International Law and
Human Rights Research Reports 2/1999) at 8.
38
individual human rights in development work, and this is still an ongoing topic in the UN.221
As a basis for human rights-based development work, the right to development has, however,
not been very popular. Bilateral donors in fact very seldom refer to the right to
development.222 The Declaration places emphasis on global inequity among states and donor
obligations, referring also to a new international economic order based on sovereign
equality,223 and this is probably too political for many international development actors.224
Among (Western) development actors various human rights-based approaches to development
have gained wider support – and maybe this is a deliberate effort to stay away from the
controversies raised due to the reference to global inequalities in the Declaration on the Right
to Development.225
Another reason for the hesitation among some Western states towards the Declaration has
been the general reluctance to accept economic, social, and cultural rights as enforceable
human rights. Although this has changed significantly over the past ten year or so, historically
there has always been certain tension between the North, that has traditionally emphasised
civil and political rights, and the South that has given primary importance to economic and
social rights.226 One of the reasons for the long separation of development and human rights
could be found in this tension. Around the time of the adoption of the Declaration on the
Right to Development, the human rights community, especially the NGOs of the North, but
also academics and the UN, focused almost exclusively on civil and political rights.227
Consequently, most economic and social rights have, until recently, had a marginal position in
the human rights community during the last half century. It can, for example, be mentioned
that Amnesty International changed its statute to include work on economic, social, and
cultural rights in 2001228 (and it can be added that this was a hard-fought for move and a
controversial shift within Amnesty).229 The development community has for its part neglected
both economic and social rights – that could provide a legal and ethical basis for their work –
221
Sia Spiliopoulou Åkermark, “Human Rights, Globalization, Trade and Development” in C. Krause & M.
Scheinin (eds), International Protection of Human Rights: A Textbook (Turku: Åbo Akademi University Institute
for Human Rights, 2009) 343-362, at 360.
222
See Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1423.
223
Article 3(3): “States have the duty to co-operate with each other in ensuring development and eliminating
obstacles to development. States should realize their rights and fulfil their duties in such a manner as to promote
a new international economic order based on sovereign equality, interdependence, mutual interest and co-
operation among all States, as well as to encourage the observance and realization of human rights.”
224
Jones and Stokke, “Introduction”, supra note 218, at 5. See also Cornwall and Nyamu-Musembi, “Putting the
‘Rights-Based Approach’”, supra note 44, at 1424.
225
See Celestine Nyamu-Musembi and Andrea Cornwall, What is the ‘Rights-Based Approach’ all about?
Perspectives from International Development Agencies (Brighton: Institute of Development Studies, IDS
Working Paper 234, 2004), at 9. Available at http://www.ids.ac.uk/files/Wp234.pdf, visited 10 May 2012.
226
See Lindroos, The Right to Development, supra note 220, at 70.
227
The HIV/AIDS work can serve as an example. In the 1990s, the major share of human rights attention
regarding HIV/AIDS was paid to confidentiality, privacy and bodily autonomy that were being described in the
language of civil and political rights. David P. Fidler, International Law and Infectious Diseases (Oxford:
Oxford University Press, 1999) at 209. For an example of civil and political rights related issues raised in the
HIV/AIDS context, see George J. Annas, “The Impact of Health Policies on Human Rights: AIDS and TB
Control”, in J. M. Mann & S. Gruskin, et al (eds), Health and Human Rights: A Reader (New York: Routledge,
1999) at 37-45. For criticism that the human rights approach e.g. in the International Guidelines on HIV/AIDS
and Human Rights is reinforcing the separation between civil and political rights from economic, social and
cultural rights, see Mark Heywood and Dennis Altman, “Confronting AIDS: Human Rights, Law, and Social
Transformation”, 5 Health and Human Rights (2000), 149-177, at 157 and 166.
228
“The History of Amnesty International”, see http://www.amnesty.org/en/who-we-are/history, visited 14 May
2012.
229
Stephen Hopgood, “”Dignity and Ennui” A Review Essay of Amnesty International’s Report 2009: The State
of the World’s Human Rights”, 2 Journal of Human Rights Practice (2010) 151-165, at 157.
39
and civil and political rights that are equally important in the struggle for human dignity and
against social exclusion.230
The Declaration on the Right to Development speaks about development as a particular
process of economic, social, cultural, and political development, in which all human rights
can be fully realised.231 Furthermore, the preamble of the Declaration defines development as
a “comprehensive economic, social, cultural and political process, which aims at the constant
improvement of well-being of the entire population and of all individuals, on the basis of their
active, free and meaningful participation in development and in the fair distribution of
benefits resulting there from.”232
Arjun Sengupta notes that the concept of well-being in this context extends beyond the
conventional notions of economic growth to include the expansion of opportunities and
capabilities.233 This comes close to the human development understanding of development,
and therefore Sengupta argues that the right to development can be described as the right to
human development.234 The ‘right to human development’ is defined as a development
process that expands substantive freedoms and realises all human rights. In the right to
development perspective, human development is claimed as a human right, and thus becomes
a qualitatively different approach compared to the human development model. The way
development objectives are achieved235 becomes central: “The objective is fulfilling human
rights and the process of achieving this is also a human right.” This process must respect
equality and participation, not be in violation of human rights, be including a clear
specification of obligations and responsibilities and having a mechanism for monitoring.236
Equality and participation are central principles also in human development, but perhaps the
defining difference between the right to development approach and the human development
approach is that the objectives of development are set up as entitlements of rights-holders,
which duty-bearers are expected to fulfil, respect, protect, and promote while respecting
international human rights standards.237
One could say that this view on development represents the human rights communities’
picture of ‘ideal conditions of social existence’, borrowing Rist’s wording; and that as of
today, there is no society where these conditions exist. This is simply an observation – not an
attempt to delegitimise efforts that are striving towards such conditions. Some argue that
having this kind of vision is what is distinctive about a human rights approach to development
– that it sets out a vision of what ought to be,238 providing a normative framework to orient
the practice of development cooperation. The human development discourse is not lacking a
vision for development, but while human rights approaches can refer to internationally agreed
230
Uvin, Human Rights and Development, supra note 52, at 47-48.
231
The Declaration on the Right to Development states: “The right to development is an inalienable human right
by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human rights and fundamental freedoms can
be fully realized.”
232
As cited in Sengupta, “On the Theory and Practice of the Right to Development”, supra note 219, at 847
233
Ibid., at 848.
234
Ibid., at 851. The Office of the United Nations High Commissioner for Human Rights (OHCHR) holds that a
human rights-based approach is a conceptual framework for the process of human development. See OHCHR,
“Frequently Asked Questions”, supra note 81, at 15-16.
235
The importance of the development process was discussed already in the Report by the Secretary-General on
the international dimensions of the right to development, supra note 214.
236
Sengupta, “On the Theory and Practice of the Right to Development”, supra note 219, at 851.
237
Ibid., at 852.
238
Julia Hausermann, A Human Rights Approach to Development (London: Rights and Humanity, 1998) at 31.
40
norms, backed by international law, human development uses more philosophical arguments
to back up their vision.
The different goals between human development and human rights-based development should
be noted: the latter has full realisation of all human rights as the ultimate goal of development
while the former aims at enlargement of peoples’ choices in all fields. Those choices can
change over time.239 Working with a pre-determined goal decreases the role of people as
active agents formulating their own vision for development.
Among the organisations working with human rights-based approaches to development, in
one way or the other, there are critical voices stating that the objective to realise human rights
is too narrow and limited. In order to capture all the goals of development, such as ending
inequality and poverty, it is necessary to extend the notion of rights beyond legal frameworks,
and this again leads to difficulties in delimiting exactly what a right is.240 Therefore, some
organisations choose rights-based programming, where a human rights analysis is brought
into all programming and guides the work, instead of allowing legal human rights to inform
their overall aim.241 Moreover, many organisations struggle with the fact that concepts of
human rights are quite alien within many communities they work with.242 In this thesis an
actor-oriented perspective on human rights in development is proposed as an alternative to
partly address these dilemmas.
‘Poverty’ in human rights approaches
Although in theory human development is about enlargement of peoples’ choices and
freedoms, in practice it is mostly about poverty reduction or eradication (and that is true for
the economic development discourse as well, only the tools for development policy making
are different). Poverty is seen as one of the greatest obstacles to human development. The
human rights community for its part is starting to protest that poverty is the gravest human
rights challenge facing the world today.243 Therefore, here the human development
community and the human rights community have common ground, although it is not part of
human rights practice to monitor or measure poverty.244 Nor is there a unified human rights
definition of poverty. The Office of the UN High Commissioner on Human Rights has
commissioned a number of studies on the subject and suggests that Amartya Sen’s ‘capability
approach’ to poverty245 – that is central in the human development discourse – provides a
conceptual bridge between the discourses on poverty and human rights.246
The concept of ‘capability’ refers to a person’s freedom or opportunity to achieve well-being,
e.g. to what extent s/he can be free from hunger or take part in the life of a community.
239
ul Haq, Reflections on Human Development, supra note 202, at 14.
240
Emma Harris-Curtis et al., The Implications for Northern NGOs of Adopting Rights-Based Approaches,
(England: International NGO Training and Research Centre, Occasional papers Series No: 41, 2005) at 41.
241
ActionAid is an example of one big NGO that is using rights-based programming, but retains its central
vision of addressing poverty. Ibid., 40-41.
242
Harris-Curtis et al., The Implications for Northern NGOs, supra note 240, at 42.
243
Office of the High Commissioner for Human Rights, “Principles and Guidelines for a Human Rights
Approach to Poverty Reduction Strategies”, at iii. Available at http://www.ohchr.org/Documents/Publications/
PovertyStrategiesen.pdf, visited February 2012; Office of the High Commissioner for Human Rights, “Human
Rights and Poverty Reduction: A Conceptual Framework”, New York: 2004, at 5. Available at http://www2.
ohchr.org/english/issues/poverty/docs/povertyE.pdf, visited 10 May 2012; Irene Khan writes in the Amnesty
International publication The Unheard Truth (2009) “that poverty is the world’s worst human rights crisis”.
244
See Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 76.
245
The approach was developed in dialogue with Martha Nussbaum.
246
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 3.
41
Human freedom is thus the common element, linking the two discourses.247 The capability
approach is also a normative framework, evaluating social situations according to the amount
of freedom people have to peruse what they have reason to value.248 Freedom is here
understood in a broad sense, to encompass both positive and negative freedoms. The
capability approach defines poverty as the absence of certain basic freedoms, such as the
freedoms to avoid hunger, disease, illiteracy, and so on. Poverty is no longer defined as a lack
of adequate income as has traditionally been done. Income is not a capability and therefore
not an aspect of well-being in itself, it is seen only as a factor contributing to the achievement
of capabilities.249 However, when we discuss poverty as a social problem we cannot deny the
link to deprivation caused by economic constraints. The OHCHR report argues that there is a
need for a definition of poverty that refers to the non-fulfilment of human rights and at the
same time linking it to the constraint of economic resources.250 Not every case of low level of
well-being can be regarded as poverty, and so the report suggests that non-fulfilment of
human rights would count as poverty when: (1) the human rights involved are those that
corresponds to the capabilities that are considered basic by a given society; (2) inadequate
command over economic resources play a role in the causal chain leading to the non-
fulfilment of human rights.251 As has been noted this is not a definition of poverty from a
human rights perspective, but more a conceptual clarification of when and where human
rights and poverty meet.
In the follow-up publication by the OHCHR, it is repeated that poverty is a state of complex
and interrelated, mutually reinforcing deprivations, which impact on people’s ability to claim
and access their civil, cultural, economic, political and social rights.252
2.1.4 Alternative development models and empowerment
Beside the human development paradigm in the early 1990s there are other development
models that have influenced how development as a concept has evolved over time and what
kind of activities have been carried out in its name. The United Nations Commission on
Environment and Development was established in 1983 in an attempt to address increasing
concern with environmental problems in developing countries and the failure to relate these
problems to development issues.253 The subsequent report Our Common Future (1987) and its
basic concept ‘sustainable development’ had a considerable impact on the development
discourse. The report, also known as the Brundtland Report, defined sustainable development
as “development that meets the needs of the present without compromising the ability of
future generations to meet their own needs”.254
As opposed to the human development school, the sustainable development movement, that
started long before the so called Bruntdland Commission, was to a large extent anti-growth.
247
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 6. In order to fully appreciate the
capability approach as a way of understanding and measuring poverty, one should also be familiar with other
major other philosophical traditions, which have resulted in two distinct approaches to the definition and
measurement of poverty: the income/consumption approach and the participative approach. See Hårsmar,
Understanding Poverty in Africa?, supra note 179, at 24. This is, however, outside of the scope of this chapter.
248
Hårsmar, Understanding Poverty in Africa?, supra note 179, at 23.
249
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 9 and 7.
250
Ibid., at 6.
251
Ibid., at 10.
252
OHCHR, “Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra
note 243, at iii.
253
Michael Redclift, Sustainable Development: Exploring the Contradictions (London: Routledge, 1987) at 12.
254
The World Commission on Environment and Development, Our Common Future, supra note 192, at 43.
42
For instance, the Club of Rome had recommended an end to exponential growth. The
objective was not to place the ‘environment’ above the living standards of the poor in the
South, but the Club wanted to see a commitment to meet the basic needs of the poor as the
prime objective of a much more limited growth trajectory.255
In the context of how human needs and the environmental needs can coexist it is interesting to
highlight indigenous cultures’ understanding of ‘development’ and sustainability. In Bolivia,
indigenous president Evo Morales has introduced the concept ‘Living Well’ into the public
discourse as the basis for a global movement against consumerism, depletion of natural
resources for profit, and current models of ‘development’. This indigenous concept ‘Living
Well’ means, in short, having all basic needs met while existing in harmony with the natural
world instead of seeking more and more material goods at the expense of the environment.256
It is a concept, which in theory seems to be similar to attempts to replace GDP with quality of
life (while in practice these attempts still result in prioritising consumption).257 This view
challenges development as a process of constant ‘improvement’. It also challenges the very
core of Western thinking. The idea that growth or progress should be able to continue
indefinitely is an idea that radically distinguishes Western culture from all others.258
This brings us to the fact that dominating development models have always been criticised.
The so called alternative development school that advocates the empowerment model is also
relevant when exploring the meaning of the term development. Criticism of the dominating
economic model of development has also been at the core of this movement.
Alternative development is often referred to as an alternative development model or
paradigm,259 and within this label there are many representatives. What is common to these
voices is an emphasis on ‘development from below’ and an effort to redefine development
itself as social transformation.260 The role of the state is, moreover, not viewed in the same
way as in conventional development: the role of the state is to be an enabler and facilitator of
people’s self-development.261 While human development is state-centred, alternative
development has its agency in local, grassroots, and social movement activism. However,
more recent alternative approaches, represented by e.g. John Friedman, argue that strong civil
society needs a strong state.262 I have chosen one representative of alternative development
thinking, Friedman, because he partly applies a rights language and not only the language of
equity, participation, and environmental sustainability. In 1992 Friedman wrote:
No matter how dynamic, an economic system that has little or no use for better
than half of the world’s population can and must be radically transformed.
Broadly speaking, the objective of an alternative development is to humanize a
system that has shut them out, and to accomplish this through forms of everyday
resistance and political struggle that insist on the rights of the excluded population
255
Redclift, Sustainable Development, supra note 253, at 54.
256
IPS Inter Press Service, “Bolivia: ‘Living Well’ in Harmony with the Environment” by Franz Chávez, 2010.
Available at http://ipsnews.net/news.asp?idnews=51125, visited 8 May 2012.
257
Alberto Chirif, “Happiness as a Quality of Life Indicator”, 1-2 Indigenous Affairs (2010) 64-69, at 69.
258
Rist, The History of Development, supra note 193, at 238.
259
Pieterse, Development Theory, supra note 2, at 81.
260
Ibid., at 82-83.
261
Ibid., at 83.
262
Ibid., at 96.
43
as human beings, as citizens, and as persons intent on realizing their loving and
creative powers within.263
This model strives for inclusive democracy and appropriate economic growth, the overarching
intent being to reintegrate the invisible poor with the larger community, and to assert their full
rights as citizens in that community. Friedman claims that this kind of reintegration of as
many as half the population with an existing political community in which they exercise few
rights cannot be done unless the system of dominance, i.e., authoritarianism, peripheral
capitalism, and patriarchy are themselves fundamentally changed. This battle for systemic
change may last for generations.264
As we can see rights talk has played a role in alternative development thinking. Friedman
argues that human rights are one out of three foundations for the claim that every person is
entitled to both adequate material conditions of life and to be a politically active subject in his
community. (The other two are citizens rights and “human flourishing”.)265
The way human rights are understood and applied in a rhetoric argument is, however,
different from the mainstream understanding, underlining from below action and critically
examining dominant definitions. This is also the case with regard to democracy. Friedman
writes that “contrary to the popularly held view that democracy is defined primarily by a set
of individually held rights, such as the vote or free speech, it is here understood to rest on the
legitimate powers of an actualized citizenship or of responsible membership in a politically
constituted community.”266 This means strengthening the meaning and reality of political
community, and seeing political practice as a form of collective self-empowerment.267 This
again is linked to the struggle for accountability: a strong political community requires an
open political space in which to mobilise and be able to hold the state accountable for its
actions.268 As we will see in the following chapters, the way the concepts empowerment and
accountability are used, and how they are linked to human rights, differs from one
development actor to another.
The term ‘community development’ can be seen as being part of the alternative development
paradigm, although there are community development projects that are top-down in practice.
Ife points out that most development projects are a mixture of top-down and bottom-up
approaches. ‘Empowerment’ and ‘participation’ are principles valued in most top-down
projects and many bottom-up projects make use of external expertise, to mention one example
of how the mixture occurs in practice. This mix of top-down and bottom-up approaches also
contributes to giving ‘development’ a bad name; the criticism is usually directed towards top-
down approaches that seek to impose on a community someone else’s view of what is ‘good
development’.269 In bottom-up community-driven development it is accepted that
‘development’ can, and will, mean very different things in different contexts and
communities.270
According to Ellerman there are two ways the ‘helpers’ (i.e., development professionals or
others working with ‘development’) can thwart autonomy or self-help: (1) “the helper, by
263
John Friedman, Empowerment: The Politics of Alternative Development (Oxford: Blackwell Publishers,
1992) at 13.
264
Ibid., at 72-73.
265
Ibid., at 10.
266
Ibid., at 74.
267
Ibid., at 76.
268
Ibid., at 81.
269
Ife, Human Rights from Below, supra note 8, at 18.
270
Ibid., at 20.
44
professionally guided programs of social engineering, deliberately tries to impose his will on
the doer; (2) the helper, by benevolent aid, replaces the doer’s will with her will, perhaps
inadvertently.”271 Ellerman gives a number of examples of this kind of “unhelpful help”. All
kinds of conditioned aid, human rights related or not, can be placed in the first category while
examples of the latter can be found in the area of funding given based on externally supplied
motivation of carrots and sticks.
Ellerman suggests an indirect approach, which is based on the respect for the autonomy of the
doers. Autonomous action is based on inside-out, internal, or intrinsic motivation and this
does not go well hand in hand with attempts to engineer action with external carrots and
sticks.272 Similarly, bottom-up community development is based on the premise that local
knowledge, wisdom, skills and understandings need to be valued above top-down wisdom and
experience. In the context of our modern industrial society this is a radical position because
we are used to bureaucratic models that assume superior wisdom to reside at the top of the
hierarchy, and that the task of political, administrative and community processes is the
implementation of this superior wisdom.273 Ellerman makes a distinction between the ‘direct
path’ and the ‘indirect path’. In the first approach, the helpers help the doers by supplying
motivation to get the doers to do what the helpers value “the right thing”. In contrast, on the
indirect path, which respects autonomy, the helper helps the doers to help themselves by
reducing obstacles and by supplying e.g. resources to enable the doers to do what the doers
were already motivated to do themselves.274
Uvin compares this to ‘a radical capacity building approach’. The success of such an approach
can be measured according to the degree to which local actors, whether public or private, are
allowed to fail and learn from failure. Local action is never substituted, and the helper only
brings in complements on demand. Uvin is convinced of the need for such a radical approach
to institution building but is not sure it conforms with human rights standards. He sees
compatibility between the approach and human rights values such as freedom of choice and
autonomy. Civil and political rights might be strengthened through this approach, depending
on the nature of the institutions. Concerning ESC rights, he believes this approach takes
longer to yield results in their realisation than direct delivery- or service-based approaches.
The approach of “do not substitute or impose” might be difficult or impossible to use applying
a human rights-based approach to development cooperation, in which the build-in assumption
is that capacity is created and used for human rights-conforming aims. Allowing local
organisations and people to struggle for their own change and learn from their own mistakes
becomes limited in a strong human rights approach that has clear objectives where the change
should be going.275 The contradiction between free choice and conditionality is only one
example of tensions that are present in all aid.276 At first sight it seems that human rights,
when conventionally defined, add to the contradictions and paradoxes rather than offering
solutions. I will show in the next chapter that an actor-oriented, or bottom-up approach, as
suggested by Jim Ife is more compatible with alternative development thinking and from
below community development.
271
David Ellerman, “Helping Self-help: The Fundamental Conundrum of Development Assistance” 36 The
Journal of Socio-Economics (2007) 561-577, at 564.
272
Ibid., at 566.
273
Ife, Human Rights from Below, supra note 8, at 30.
274
Ellerman, “Helping Self-help”, supra note 271, at 575-576.
275
Uvin, Human Rights and Development, supra note 52, at 114-115.
276
Ibid., at 118.
45
2.1.6 Concluding remarks
It is quite sensible for development to change meaning over time in relation to changing
circumstances. ‘Development’ then serves as a mirror of changing economic and political
priorities and choices, and changing relations of power and hegemony.277
It is inevitable that there is substantial ambivalence and contradiction when we try to find a
definition for development. ‘Development’ can be seen as the broad movement which has
been carrying the market system along for the past two centuries – or it can be seen as the
entire set of measures through which the world should be made a fairer place.278 Hugo Slim
actually suggests we do away with the word development, and talk a political language of
equality, fairness, social justice, rights and responsibility.279 This suggestion shows how
contested the concept development is.
As we can see human rights have played a role in both mainstream development280 and in the
so called alternative development, and the two are not mutually exclusive. Mainstream
development may currently be dominating, but at its side an alternative development
discourse also exists, and it often brings in new ideas (gender equality and sustainability are
two examples) into the mainstream. Broadly speaking one can see a divide between human
and alternative development, on the one hand, and positivism of growth on the other.281
In the right to development and human rights-based approaches to development there are
elements of people-centred human development, with a strong role to be played by the state.
Since human rights discourse tends to avoid political questions, there is no clear position on
economic systems and the question of growth. There is no fundamental critique or
questioning of the very foundational (Western) idea of ‘development’ as constant growth or
improvement; the human rights-based model simply puts some limitations on what actions
can be legitimised in the name of development as well as offering ‘new’ principles, based on
human rights norms, for the development process.
The objective of the right to development and human rights-based approaches to development
is the realisation of human rights for individuals, as rights-holders, by states, as duty-bearers,
under international human rights instruments. Development is defined as a process of
economic, social, cultural, and political development, in which all human rights can be fully
realised. This view on development reflects how the mainstream human rights community
views ‘ideal conditions of human existence’. It is a society where there are no violations of
the rights and freedoms guaranteed in human rights instruments. It is a society where there is
“constant improvement of well-being of the entire population and of all individuals”, as
declared in the preamble of the Declaration on the Right to Development. It is a society where
all children are vaccinated, go to school and have access to nutritiously safe food and potable
drinking water,282 and so on. The ambition is high and the intension is good, but the outcome
might be a rather uniform society far from the vision that development is about “realization of
the potentialities of the human person in harmony with the community”, as stated in the UN
report on the international dimensions of the right to development in 1979.
277
Pieterse, Development Theory, supra note 2, at 7.
278
Rist, The History of Development, supra note 193, at 214.
279
Slim, “A Response to Peter Uvin”, supra note 57, at 5.
280
Mainstream development can be defined as everyday development talk in developing countries, international
institutions and international development cooperation. Pieterse, Development Theory, supra note 2, at 94.
281
Pieterse, Development Theory, supra note 2, at 96.
282
Compare with General Comment No. 14 (2000) on the highest attainable standard of health, para 36, by the
Committee on Economic, Social and Cultural Rights. UN doc. E/C.12/2000/4.
46
We can compare the human rights development objective with the objective of the human
development school, which is an enlargement of people’s choices in all fields. People may
value vaccinations as a way of preventive health care, or they may not value it, they might
value public schooling or not. Although the human rights system naturally provides for
individual choice, the human development model has a stronger philosophical basis
underlining the freedom and agency of individuals and groups. When the objective is given
(from above as stipulated in human rights instruments and by expert-led institutions) there is
less room for formulating people’s own visions of what kind of development they might
value.
However, when looking at the policies proposed in the human development school, they too
are rather uniform and offer less room for freedom and autonomy. Moreover, although in
theory people are at the centre of human development policies, in practice development
progress continues to focus on nations or economies, rather than people.
The strongest emphasis given to agency, autonomy, and from below action is in the
alternative development models. ‘Development’ is accepted to mean very different things in
different contexts and communities, and the diversity that springs out of this is valued. Rights
talk has been popular within the alternative development paradigm but the definition of what
‘rights’ mean is left open and the objective of development efforts is not linked to
international human rights treaties.
2.2 Giving meaning to ‘human rights’, agency, and change in human rights
discourse
In this chapter, I raise questions about the nature of human rights. What kind of understanding
of the human rights concept can be respectful and relevant to the lived realities of the actors
striving to improve the condition of their lives, i.e., doing ‘development’? Who gives meaning
to human rights? One of the central arguments set out here is that it is doubtful that human
rights can be drivers of change that contest the status quo in favour of oppressed people if
these very same people do not have a say in how they understand the concept of human rights.
In order to be relevant, the people, who are to claim and implement international standards of
human rights must perceive the concept of human rights and its content as their own. Human
rights cannot be imposed on people from above as specialised expert knowledge, instead
people must regard these standards as emanating from their own worldview and values.283
Legitimacy of human rights is key for their practical relevance.
2.2.1 Introduction
My questions are related to the question raised by Balakrishnan Rajagopal as to whether the
current trends in international law “will end up formalising and reinforcing a ‘hegemonic’
international law, or whether there is still some potential for making international law into a
counter-hegemonic tool.” Rajagopal argues that if it is going to be possible for a co-existence
of counter-hegemonic international law alongside hegemonic284 international law, then the
Third World’s reliance on discourses such as human rights or development need to be
283
Abdullahi Ahmed An-Na’im, “Conclusion” in A.A. An-Na’im (ed.), Human Rights in Cross-Cultural
Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992) at 431.
284
Hegemony refers to “power that maintains certain structures of domination” that is ordinarily invisible. Susan
F. Hirsch and Mindie Lazarus-Black, “Performance and Paradox: Exploring Law’s Role in Hegemony and
Resistance”, in Hirsch & Lazarus-Black (eds), Contested States: Law, Hegemony and Resistance (New York:
Routledge, 1994) 1-31, at 6.
47
seriously rethought. Human rights discourse has been, in the past, used by the Third World
against colonialism, apartheid, and in numerous self-determination movements. Today it is
still used as a limited shield in the hands of social movements, NGOs and victims of human
rights violations but the discourse of human rights has also “turned out to be a core part of
hegemonic international law”.285 Human rights discourse of today has a choice, in
Rajagopal’s opinion, to either insinuate itself with hegemonic international law or it can be
part of a struggle to strengthen counter-hegemonic international law.286 This thesis argues that
an actor-oriented approach to human rights from below, in which the voice of the actors
themselves is strengthened in the processes of giving meaning to human rights, may be useful
if the human rights idea is to be relevant as a counter-hegemonic strategy.
One fundamental dilemma for human rights practitioners, especially working in the South, is
that there is often a gap between global visions of justice and specific, local community-based
visions of justice.287 In her research on the localisation of human rights, Merry has seen that
human rights ideas still have difficulty in crossing the divide between their global sites of
production and their local sites of appropriation.288
I agree with Merry that:
[T]he paradox of making human rights in the vernacular [is]: in order to be
accepted, they have to be tailored to the local context and resonate with the local
cultural framework. However, in order to be part of the human rights system, they
must emphasize individualism, autonomy, choice, bodily integrity, and equality,
ideas embedded in the legal documents that constitute human rights law. These
core values of the human rights system endure even as the ideas are translated.
Whether this is the most effective approach to […] promoting global social justice
is still an open question. It certainly is an important part of the expansion of a
modernist view of the individual and society embedded in the West.289
In this chapter, I look at the debates related to the human rights concept: questions are raised
on human rights and agency; ‘politics’ and human rights; legalization of human rights; human
rights law and change; universalism, relativism, context and particularism; individual and
group rights; and indivisibility and hierarchy between different sets of rights. These issues are
relevant when exploring the potential transformative power of human rights as they enter into
the development sphere.
2.2.2 Historic overview of the human rights movement
Since this study views human rights as social constructions that are discursively constructed,
and therefore by definition change over time, it is essential to have some understanding of the
history of human rights.290 There is no general agreement on this history, and this debate is
outside the scope of this chapter. For the purpose of understanding the role of human rights in
modern development discourse and practice, it is sufficient to know that it is strikingly
recently that the human rights phenomenon became widespread. Although ideals of dignity
and justice have deep roots that can be located in all societies, human rights are a new concept
285
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 64.
286
Ibid., at 71.
287
Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice
(Chicago: The University of Chicago press, 2006) at 103.
288
Ibid., at 224.
289
Merry, Human Rights and Gender Violence, supra note 287, at 221.
290
See Ife, Human Rights and Social Work, supra note 3, at 144.
48
in human history.291 Human rights, as they have been defined in legal documents and legal
practice in the past decades, are a distinct and in many ways a new way of seeking values
such as justice, fairness and humanity. Donnely argues that the claim that most societies and
cultures have practiced human rights throughout history292 confuses these values with modern
legal human rights. Human rights, as equal and inalienable entitlements of all individuals, are
a different way of seeking to realise values such as justice.293 This position can be criticised
for accepting a narrow and formalistic definition of the human rights concept, something this
thesis argues should not be accepted, but it is essential to understand that the dominant human
rights definition departs from other ways of addressing injustice.
Human rights law represents a modern project, first spelled out theoretically by some
Enlightenment philosophers in the seventeenth and eighteenth centuries,294 but the history of
the practical implementation of international human rights extends only a few decades
back.295 According to Mutua human rights law is “an internationalization of the obligations of
the liberal state” – the normative regime of international human rights law originated in
liberal theory and philosophy, taking form in constitutional and other domestic legal regimes
and only after World War II taking form as a binding system of international human right
law.296 (The western Enlightenment tradition within which the dominant human rights
discourse was framed is naturally only one part of the history of struggle for human rights and
can and should be deconstructed as it has lead to a narrow understanding of the human rights
concept,297 but it nevertheless has had great impact on how the human rights movement looks
today.)
Since the 1980s, a variety of groups around the world, and all governments have learned to
speak the language of human rights.298 Beitz highlights that it is since the end of the Cold War
that the scope of human rights doctrine has expanded and the resources devoted to their
advancement and protection have multiplied.299 It remains a debated issue whether the process
of ‘vernacularization’ of human rights has granted ordinary people the use of human rights
291
Rhoda E. Howard, “Dignity, Community, and Human Rights”, in Abdullahi Ahmed An-Na’im (ed.), Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press,
1992) 81-102, at 82.
292
Penna and Campbell for example use so called ‘human rights symbols’ from Africa to show that ‘traditional’
Africa did have a human rights culture and the study and understanding of this culture would have theoretical
and political relevance for both modern Africa and the West. David R. Penna and Patricia J. Campbell, “Human
Rights and Culture: Beyond Universality and Relativism”, in 19 Third World Quarterly (1998) 7-27.
293
Jack Donnelly, “International Human Rights: Universal, Relative or Relatively Universal” in Mashood A.
Baderin & Manisuli Ssenyonjo (eds), International Human Rights Law: Six Decades after the UDHR and
Beyond (Surrey: Ashgate, 2010) 31-48, at 39.
294
The Enlightenment philosophers gave centrality to the human person; instead of ‘man’ being considered a
part of nature and as interconnected with all living beings, ‘he’ was considered to be above nature and having
special value. Valuing of ‘his’ or ‘her’ (usually ‘his) rights became central in philosophical and ethical argument.
Ife, Human Rights from Below, supra note 8, at 71.
295
Heiner Bielefeldt, “Philosophical and Historical foundations of Human Rights” in C. Krause & M. Scheinin
(eds) International Protection of human Rights: A textbook (Turku/Åbo: Åbo Akademi University, Institute for
Human Rights, 2009) 3-18, at 16-17. Donnelly writes that “no society, civilization, or culture prior to the
seventeenth century, however, had a widely endorsed vision, let alone practice, of equal and inalienable
individual human rights.” Donnelly, “International Human Rights”, supra note 293, at 39.
296
Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, 29 Human Rights Quarterly
(2007) 547-630, at 551.
297
See Ife, Human Rights and Social Work, supra note 3, at 146; Paul Tiyambe Zeleza, “Introduction: The
Struggle for Human Rights in Africa”, in P. T. Zeleza & P. J. McConnaughay (eds), Human Rights, the Rule of
Law, and Development in Africa (Philadelphia: University of Pennsylvania Press, 2004) 1-18.
298
Moyn, The Last Utopia, supra note 38, at 218.
299
Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009) at 1-2.
49
from below in transformative ways – and this is also one of the questions that this thesis wants
to elucidate. What is clear is that international lawyers assumed a central prominence.
Moreover, in the 1980s, human rights were no longer a minimalist utopia of anti-politics, and
human rights organizations were forced to move from morality to politics and from charisma
to bureaucracy.300 Human rights were conceived through a desire to transcend politics,301 but
in the thirty years since their explosion in the 1970s, human rights have followed a path from
morality to politics – although all their advocates are not willing to acknowledge this
development,302 and this is an issue we will return to later in this chapter. Human rights
continued to claim that their source of authority transcended politics. However, their
transformation into the dominant framework of the government and improvement of human
life all over the planet changed them profoundly. The human rights movements’ engagement
with ‘governance’ concerns in postcolonial states is one example of embracing politics.303
Returning to the question of human rights as hegemonic and counter-hegemonic; Rajagopal
claims that the expansion of the political use of human rights in the 1980s – he refers to
struggles for democracy in Eastern Europe as well as in Latin America – meant that human
rights discourse was in a counter-hegemonic mode during this time.304 Latin American
policymakers, legal scholars, and activists have historically been strong supporters of the
development of international human rights law, as they have perceived such laws as a way of
protecting weaker states from more powerful states, particularly the United States. Within
these countries there have been vocal domestic human rights organizations demanding respect
for human rights and change.305 Moreover, social movements, e.g. by indigenous peoples,
used a language of human rights to challenge violations and repression during this time. There
were examples of how human rights were used for hegemonic agendas also during the 1980s
but it was the end of the Cold War that made the shift possible, so that a new hegemonic role
for human rights was born. The UN and human rights groups started to more aggressively
pursue humanitarian interventions in the name of human rights in Somalia, the Balkans,
Kosovo, Haiti, and elsewhere. Furthermore, a market-friendly understanding of human rights
was being embraced by the World Bank and several bilateral donors. A new “totalising
discourse”, applying the language of military intervention, economic reconstruction and social
transformation, gave a new hegemonic role to human rights.306 However, this market-friendly
understanding of human rights has not occurred without resistance and during the 1990s
human rights played a role in local struggles against large-scale ‘development’ interventions
such as dam constructions.307
As mentioned earlier, Jim Ife points out that human rights were created at the time of
modernity and the specific ways of viewing the individual that characterise this time. One
300
Moyn, The Last Utopia, supra note 38, at 218-219.
301
Koskenniemi holds that the standard view of international law is that of a “”common language” transcending
political and cultural differences”. Martti Koskenniemi, From Apology to Utopia: The Structure of International
Legal Argument. Reissue with new Epilogue (Cambridge: Cambridge University Press, 2005) at 567.
302
Moyn, The Last Utopia, supra note 38, at 227.
303
Ibid., 223.
304
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 66.
305
Ellen L. Lutz and Kathryn Sikkink, “International Human Rights Law and Practice in Latin America”, in
Judith L. Goldstein, Miles Kahler, Robert O. Keohane & Anne-Marie Slaughter (eds), Legalization and World
Politics (Cambridge: The MIT Press, 2001) 249-275, at 255-256.
306
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 66.
307
For human rights arguments against the building of dams on the river of Narmada see Philippe Cullet,
“Narmada Dams and Human Rights” 17 Frontline (2000). Available at http://www.frontlineonnet.
com/fl1714/17140950.htm, last visited 11 February 2012. The campaign resulted in internal changes of control
and review mechanisms at the World Bank, as well as contributing to setting up of the Inspection Panel at the
Bank.
50
defining feature of modernity has been an effort to seek sameness, a consequence of the view
that there is or should be one ‘right’ way of doing things (sometimes called ‘best practice’).308
The West is in this context seen as modern, urban, and dynamic while especially Africa and
Asia are seen as traditional, rural, and static. These cultures are allegedly characterised by
tradition, despotism, communalism, and irrationality – values that are seen as inherently
opposed to human rights. The world is thereby divided “into the creators and recipients of
human rights, the monitors and monitored, the viewers and the viewed, the globalists and
provincialists, the universalists and relativists.”309
In the following pages I will seek an alternative way of approaching and understanding the
human rights concept. I argue that there is no one-size-fits-all definition of human rights. This
is an approach to human rights that, in a postmodern way, celebrates diversity.310 This
approach does not go back to the ‘roots’ in relation to justice and dignity – it acknowledges
those roots as well as what has been achieved during modernity and moves beyond these
discourses into something new. A historic perspective on human rights and struggle against
oppression shows that circumstances can and do change,311 the current social order is not
given.
2.2.3 A review of the meanings attached to the human rights concept: Moving beyond
human rights as defined by the ‘powerful for the powerless’
The human rights concept: four schools of thought
In this section, I first present four schools of thought on human rights, each of which has its
own way of approaching and understanding the human rights concept. Thereafter, I present a
so called actor-oriented approach to human rights, inspired by Nyamu-Musembi and
complemented by Jim Ife’s ‘human rights from below’. Here I try to put forward an
alternative way of giving meaning and content to the human rights concept where we can
move beyond human rights being defined by the “powerful for the powerless”,312 which goes
against the idea of participation and inclusion – central principles in human rights-based
approaches to development.
An-Na’im claims that the idea of human rights is one of the most characteristic phenomena of
our time. This concept has quickly gained global significance, penetrating into the
consciousness of millions of people in every corner of the world.313 In most research,
including attitudinal research, the human rights concept is taken as a given. Stenner highlights
that it is striking how comparatively little scholarship there is on how ordinary people actually
understand the human rights concept.314 This is the case despite there being serious
disagreement about the human rights concept, rationale, and content, which is not necessarily
308
Ife, Human Rights from Below, supra note 8, at 36.
309
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 10.
310
Ife, Human Rights from Below, supra note 8, at 47. In the postmodern worldview different elements do not
need to fit together, show consistency, or work in harmony, and this allows for communities where difference is
valued rather than eradicated. Ibid. at 47. Pluralism is the ‘ism’ of our time. Kumar, From Post-Industrial, supra
note 16, at 104-105.
311
See Ife, Human Rights and Social Work, supra note 3, at 147.
312
This phrase is used by Ife, Human Rights from Below, supra note 8, at 126.
313
An-Na’im, “Conclusion”, supra note 283, at 430-431.
314
Paul Stenner, “Subjective Dimensions of Human Rights: What do Ordinary People Understand by ‘Human
Rights’?” 15 The International Journal of Human Rights (2011) 1215-1233, at 1216.
51
a terrible thing,315 and that different people within academia, organisations, and state agencies
embrace different concepts of and attach different meanings to human rights.316
Dembour has analysed academic human rights literature and based on the analysis she has
identified four schools of thought on human rights.317 I find her model helpful in clarifying
the different meanings attached to the human rights concept and will therefore use the four
schools as a starting point for a discussion on some pertinent issues related to human rights.
The first school presented by Dembour is the natural school,318 which uses perhaps the most
well-known and common definition of human rights. It is a definition that identifies human
rights as those rights one posses simply by being a human being. Human rights are viewed as
given. Human rights are absolute and universal entitlements based on ‘nature’.319 Martti
Koskenniemi calls this “political theology”, as natural rights suggest that “human
communities are bound by values that precede them.”320 The natural scholars hold that human
rights exist independently of social recognition, even though recognition is preferable.321 To
quote Jack Donnelly: “Although we have human rights universally, simply as human beings,
we enjoy them as a result of contingent political and legal practices.”322
Within the natural school, there is a tendency to celebrate human rights law. The development
of international human rights law in the last half-century is regarded as undeniable progress.
Natural scholars believe in human rights, and historically they have set up the parameters
within which human rights came to be conceived and debated. Traditionally, they have
represented the human rights orthodoxy.323
The orthodoxy is increasingly moving towards what Dembour calls the deliberative school.
These scholars tend to reject the natural element on which natural scholars base human rights.
They claim human rights come into existence through social agreement.324 All rights are
extrinsic to individuals and groups in that they are created and attached to legal persons by
external forces, through legislative acts and/or judicial decisions. This kind of legal positivism
leaves space for a social dimension as regards the development of rights and their attachment
to their bearers, whilst natural law theory refers to divinations of one kind or the other.325 Ife
calls this tradition ‘state obligations tradition’ according to which human rights exist only
when there are mechanisms in place to provide for their protection.326 Rights depend for their
315
An-Na’im, “Conclusion”, supra note 283, at 430-431. See also Paul Gready, “Introduction” in Gready (ed.),
Fighting for Human Rights (London: Routledge, 2004) 1-32, at 3.
316
Marie-Bénédicte Dembour, “What Are Human Rights? Four Schools of Thought”, 32 Human Rights
Quarterly (2010) 1-20, at 2.
317
Ibid. Surprisingly, Stenner finds an overlap between how experts define human rights (as described by
Dembour) and the views expressed by non-experts. See Stenner, “Subjective Dimensions of Human Rights”,
supra note 314, at 1227.
318
The concept of natural law, which is based on a tradition stretching from antiquity to modernity, claims an
absolute authority for some basic normative principles that are said to have priority over all ‘human’ legislation.
The natural law tradition generally appears as one of the most important sources of human rights in Western
tradition. Bielefeldt, “Philosophical and Historical Foundations”, supra note 295, at 10.
319
Dembour, “What Are Human Rights?”, supra note 316, at 2-3.
320
Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy for Institutional Power”, 1 Humanity,
(2011) 47-57, at 48.
321
Dembour, “What Are Human Rights?”, supra note 316, at 3.
322
Donnelly, “International Human Rights”, supra note 293, at 42. Emphasis added.
323
Dembour, “What Are Human Rights?”, supra note 316, at 5 and 9.
324
Ibid., at 3.
325
Anthony Woodiwiss, “The Law cannot be enough: Human Rights and Limits of Legalism”, in Meckled-
García & Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and
Human rights Law (London: Routledge, 2006) 32-48, at 36.
326
Ife, Human Rights from Below, supra note 8, at 74.
52
protective effectiveness on the nature of wider sets of social relations and developments
within them.327 This school stresses the limits of human rights and although they would like
human rights to become universal they recognise that this will require time and will happen
only through the global adoption of the liberal values they express. Whether this will happen
or not remains to be seen.328
Similar to the natural scholars, the deliberative scholars tend to have great faith in the
potential of human rights law. They, however, underline that the human rights normative
system is in the making. Merry writes: “human rights law is far from being a consistent and
coercive system of law. Rather, it is a fragmentary and largely persuasive mechanism very
much in the making.”329
The most common definition of human rights is probably a mixture of natural and deliberative
schools. An-Na’im operates with this kind of definition according to which human rights are
“claims to which all people are entitled as of right by virtue of their humanity”, without
distinctions on such grounds as sex, race, colour, religion, language, national origin or social
group. He locates these rights and their implementation in the social and political realm of
human affairs, and as such require the allocation of resources. The basic concept of rights can
only be realised through some form of wide-scale political organisation, i.e. the state, which is
capable and willing to undertake such functions.330
The third school mentioned by Dembour is the so called protest school. Protest scholars are
concerned first and foremost with redressing injustice. They hold that human rights are
realised through a fight for their realisation.331 Zeleza reminds the reader that apartheid was
not ended by a book or a court case, and neither were colonialism nor slavery, implying that
human rights are not the outcome of concepts but of conflicts, of politics rather than
philosophy, and instigations rather than insights.332 Similarly, Stammers writes that the
emergence and development of human rights needs to be understood as part of social
movement struggles against structures of power.333
In the protest school, human rights are seen as rightful claims made by or on behalf of the
poor, the unprivileged, and the oppressed. Human rights claims allow for the status quo to be
contested in favour of the oppressed.334 These scholars maintain that, in the words of Upendra
Baxi, “suffering and repressed people remain the primary authors of human rights values and
visions”.335 Baxi continues to point out that human rights norms and standards, however, also
“entail ‘participation’ by national, regional, and global political, bureaucratic, and institutional
actors”. These actors tend to use human rights for the ends of governance, thereby
transforming human rights into a means to the end for practices, processes and institutions of
governance.336
327
Woodiwiss, “The Law cannot be enough”, supra note 325, at 37.
328
Dembour, “What Are Human Rights?”, supra note 316, at 9.
329
Merry, Human Rights and Gender Violence, supra note 287, at 227.
330
Abdullahi A. An-Na’im, “Possibilities and Constraints of Legal Protection of Human Rights under the
Constitutions of African Countries” in Abdullahi A. An-Na’im (ed.), Universal Rights, Local Remedies (London:
Interrights, 1999) 5-24 at 7-8.
331
Dembour, “What Are Human Rights?”, supra note 316, at 8.
332
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 7.
333
Stammers, Human Rights and Social Movements, supra note 4, at 2.
334
Dembour, “What Are Human Rights?”, supra note 316, at 3.
335
Baxi, “Politics of Reading”, supra note 7, at 184. Emphasis added.
336
Baxi, “Politics of Reading”, supra note 7, at 191. See also Stammers, Human Rights and Social Movements,
supra note 4, at 3.
53
Protest scholars often distrust human rights law and thereby attract mostly human rights
activists and activist-scholars.337 There exists a very diverse field of activists and researcher
activists, and not all of them distrust human rights law. The contributors, most of whom are
activist scholars, to the book Fighting for human rights, do not, for example, express any wide
scale distrust towards human rights law.338
The last school in Dembour’s model is the discourse school that is, according to Dembour,
characterised by its lack of relevance towards human rights (I believe Dembour misinterprets
discursive scholars in this regard as I will explain below). These scholars recognise that the
language surrounding human rights has become a powerful language with which to express
political claims, but they do not view human rights as given nor that they constitute the
definitive answer to the ills of the world.339 Therefore, they believe that human rights law is as
good or as bad as any other law. It must always be judged in each situation anew.340
However, these scholars tend to allude to the shortcomings of human rights discourse: it does
not deliver what it promises, namely, equality between human beings. They often observe and
describe the contradictory features of human rights discourse and they call for a re-evaluation
of the human rights language.341 Discursively oriented scholars tend to view ‘rights as
culture’, proposing that “the rights discourse embodies certain features that anthropologists
recognize as constituting culture.” Rights are understood as rights talk, rights thinking, rights
practices.342
Dembour refers to Makau Mutua as a representative of the discursive school. Mutua claims
that the human rights movement needs to realise that it is young and therefore has an
“experimental status, not a final truth.”343 In his work, Mutua “presents a view of human
rights that questions the assumption of the major actors in the human rights movement.” It
questions “the mythical elevation of the human rights corpus beyond politics and political
ideology.”344 Mutua moreover points at the paradox of human rights discourse: it seeks to
foster diversity and difference, but only so long as it is exercised within certain limits, that
according to Mutua is the ‘liberal paradigm’. He calls for an urgent revision of human rights
so that the ideals of difference and diversity can have a true meaning. Seeing human rights
norms as frozen and fixed is not in the long-term interest of the human rights movement.345 In
other words, Mutua raises a number of critical questions but he does so because he believes
human rights are hugely important – not because he sees them as lacking relevance, a feature
that Dembour claims belongs to discursive scholars.
Recent anthropology of human rights has shown that, when the idea of human rights is
rendered discursively, human rights discourse does not always homogenise legal or normative
practice. Instead, Mark Goodale, who writes about human rights discourse in Bolivia, finds
that it “transforms the terms of reference through which the legal mediates social, political,
and economic relations” and “creates new conditions in which individuals or groups can
337
Dembour, “What Are Human Rights?”, supra note 316, at 6 and 19.
338
Gready, “Introduction”, supra note 315, at 8.
339
Dembour, “What Are Human Rights?”, supra note 316, at 4.
340
Ibid., at 6.
341
Ibid., at 8 and 10.
342
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 11.
343
Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania
Press, 2002) at 4.
344
Ibid., at 2.
345
Ibid., at 3-4.
54
organize social resistance.”346 Rather than suppressing (or homogenising) normative diversity,
the arrival of human rights discourse has introduced the idea that individuals and groups have
the right to organise in ways that respect their dignity and diversity.347 This shows that when
human rights ideas enter the local level, not as abstract universal ideals, but as rights talk,
rights thinking, and rights practice they can find new limits. The way local groups use human
rights also has an impact on the global human rights discourse, an issue I will return to when
discussing who gives meaning to human rights.
Many critical authors want to acknowledge the importance of the international legal human
rights framework, but at the same time point out that the global social movements for social
justice has challenged aspects of this system, thereby contributing to its evolution and
reformulation. They refer to indigenous movements that have called for a multicultural
reconstruction of human rights (respecting diversity), to balance the liberal and individualist
bias of the existing human rights system; to grassroots movements that have contested the
traditional status of the state as the sole actor in the human rights regime; and to the feminist
movement that has questioned the patriarchal character of the human rights tradition and
worked for new instruments and conceptions.348 The human rights practices of these
movements are important as a research field in the discursive tradition.
That human rights do not represent a final truth is the same view as is held in the constructed
rights tradition. Within this tradition the starting point is that human rights are constantly
being negotiated, defined and redefined at all levels of society.349 Klotz and Lynch write that
“dominant actors can agree on what constitutes human rights at a particular point in time, but
these meanings are contested (often by marginalized actors) and are inherently unstable.”350
To many this view is threatening because stability, or at least a stable core, is seen as a virtue
and necessity in the human rights system. At the same time, diversity is also seen as a virtue
and the human rights movement is struggling with trying to achieve stability and ‘core
content’ of rights while at the same time upholding the image of being a diverse and inclusive
movement.
In the constructed rights tradition, human rights are seen as contextual and dynamic, rather
than universal and stable. The constructed rights tradition is a postmodern critique of
traditional constructions of human rights, rejecting the idea of universal human rights as
static, natural or somehow god-given. Human rights as discursively constructed sees human
rights as a discourse that is changing and evolving but with universal elements,351 as we will
see. Human rights are grounded in lived experience; everyday life is seen as a process of
negotiating and renegotiating regarding shared assumption about human rights and
responsibilities that come with them. This perspective raises challenging questions about
universality and context, which I will come back to later in this chapter. This tradition
underlines people’s agency in human rights protection and realisation,352 something it has in
common with an actor-oriented approach to human rights that will be presented below.
346
Mark Goodale, “The Power of Right(s): Tracking Empires of Law and New Modes of Social Resistance in
Bolivia (and Elsewhere)”, in M. Goodale & S. E. Merry (eds), The Practice of Human Rights: Tracking Law
Between the Global and the Local (Cambridge: Cambridge University Press, 2007) 130-162, at 158.
347
Ibid., at 159.
348
See Boaventura de Sousa Santos and César A. Rodríguez-Garavito, “Law, Politics, and the Subaltern in
Counter-Hegemonic Globalization”, in de Sousa Santos & Rodríguez-Garavito (eds) Law and Globalization
from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005). 1-26, at 20.
349
Ife, Human Rights from Below, supra note 8, at 76.
350
Klotz and Lynch, Strategies for Research, supra note 1, at 13.
351
Ife, Human Rights and Social Work, supra note 3, at 200.
352
Ife, Human Rights from Below, supra note 8, at 76-77.
55
The present author finds that the discursive understanding of human right as social
constructions is the best attempt to capture current reality of the social world we live in.
However, as Dembour points out, the four schools are not fixed categories that neatly and
perfectly describe single track thought processes,353 and this study has been inspired by
academic literature representing all four traditions presented above. For the purpose of
understanding the role of human rights in development practice the discursive understanding
of human rights is, however, most helpful.
An actor-oriented approach to human rights from below
This study has been inspired by what Celestine Nyamu-Musembi calls an ‘actor-oriented
approach to human rights’. Jim Ife writes about what a from below perspective on human
rights and community development means and his account is a good complement to the actor-
oriented perspective on human rights. In the actor-oriented model, there are no fixed
definitions of the human rights concept. Scholars such as Mahmood Mamdani argue for
moving towards a conception of rights that is produced in a concrete conceptualising of the
wrongs in each situation and context. Such an analysis leads to an understanding of rights
organic to the specific realities, and not a mechanical idea “as if out of a textbook”, from the
Western historical experiences.354 Theoretically, this perspective is close to the ‘constructed
rights tradition’, in which it is suggested that human rights are constantly being negotiated,
defined, and redefined while firmly grounded in the lived experience of the actors
themselves. The constructed rights tradition can be placed within the discourse school.
However, an actor-oriented approach also has features similar to the ideas presented in the
protest school.
In these approaches it is accepted that “rights are shaped through actual struggles informed by
people’s own understandings of to what they are justly entitled.”355 In the actor-oriented
perspective rights are understood as “claims (of one person or group on another person, group
or institution) that have been legitimised by social structures and norms.”356
Nyamu-Musembi observes that “looking for the meaning of rights from the perspective of
those claiming them transforms defined normative parameters of human rights debates,
questions established conceptual categories and expands the range of claims that are validated
as rights.”357 This is a defining feature of the protest school and is in opposition to what Baxi
calls “human rights as ethical imperatives”, a view according to which ‘human rights’ are not
thought of in terms of political practices but rather an ethic of human rights that insists on
what communities and individuals ought to desire.358
From an actor perspective, it is important to “start from where the doers are and see the world
through their eyes.” Participation as consultation is not enough: ‘doers’359 need to be in the
drivers’ seat in order to make their actions and experiences their own.360 Ellerman warns
against professionally guided programmes of social engineering that deliberately try to
353
Dembour, “What Are Human Rights?”, supra note 316, at 4.
354
Mahmood Mamdani, “Social Movements and Constitutionalism in the African Context”, Working Paper,
Centre for Basic Research, Kampala, Uganda, 1989, at 7.
355
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41.
356
Moser and Norton, To Claim Our Rights, supra note 46, at 4.
357
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41.
358
Upendra Baxi, The Future of Human Rights (Oxford: Oxford University Press, 2002) at 7.
359
Ellerman uses the concept ‘doers’ but ‘actors’ can also be used.
360
Ellerman, “Helping Self-help”, supra note 271, at 572, 575-576.
56
impose someone else’s will on the doer.361 In human rights and development practices there
are many examples of such programmes. Researchers Turnbull, Hernández and Reyes
exemplify this fundamental dilemma through using an actor-oriented approach in analysing
assistance programmes for street children. Their data show that the interventions and services
analysed by the researches were utilised by the street children in their own way and later
modified by the helpers trying to make the children ‘use them correctly’ – only to discover
new adaptations on the part of the children. Professional helpers, with their services, try to
impose upon the children, the outsiders’ idea of ‘help’ and ‘rehabilitation’. However, the
children have their own ideas. The result is a continuous battle that keeps the children on the
streets.362 Good intentions are not enough. The conclusion of the researchers is that
programmes must construct relationships and strategies which do not force the child to
renounce his or her identity in order to receive help.363 This is a valid point in any programme
that seeks to give assistance to a person or group of persons living under challenging
circumstances. Often it comes down to the difference between a top-down model of working
and a ‘from below’ perspective.
The conventional ‘from above’ approach to professional assisting usually means privileging
of professional expertise over the experience of others. The idea of dialogical praxis, building
on the work by Paulo Freire364 requires that both the professional human
rights/development/social worker and those with whom he or she works are seen as having
equivalent wisdom and expertise. Naturally, professional workers will have specialised
knowledge and skills but the person/s they work with have a range of knowledge, skills, and
experience that the workers lack: expertise that comes from lived experience and survival
skills. Dialogical praxis requires shared knowledge and mutual learning, and acting together
toward achieving human rights.365
In human rights from the below approach, human rights are defined, negotiated, and enacted
within different contexts. Human rights work becomes primarily about culture and
relationships within communities, families, households, workplaces, and public spaces.366 In
a human rights-based approach to local development it is usually natural to view human rights
work in this way (‘rights as culture’). In this context, it is necessary to have an open mindset,
to listen rather than propose solutions. Having a ridged and fixed definition of the human
rights concept (‘expert knowledge’) usually prevents a meaningful dialogue and therefore an
actor-oriented perspective may be helpful.
However, trusting a process directed by the actors alone can lead to exclusion and
discrimination and there is a need for a human rights-based approach in which a human rights
framework can place some limits on self-direction. A fundamental requirement is that the
human rights of all people, whether part of the particular group of actors or not, are respected
in the process.367 In addition, the claimed right should be seen as either aspiring to apply to all
of humanity or as applying to people from specific disadvantaged groups.368 Moreover, since
no local context is devoid of unequal power relationships, it is important to be aware who is
defining the issues in a rights language. Merry points out that often activists translate rights
361
Ellerman, “Helping Self-help”, supra note 271, at 564.
362
Bernardo Turnbull, Raquel Hernández and Miquel Reyes, “Street Children and Their Helpers: An Actor-
Oriented Approach” 31 Children and Youth Services Review (2009) 1283-1288, at 1283.
363
Ibid., at 1287.
364
Paulo Freire, Pedagogy of the Oppressed (New York: Continuum, 1993, first edition in 1970).
365
Ife, Human Rights and Social Work, supra note 3, at 151-152.
366
Ife, Human Rights from Below, supra note 8, at 139.
367
Ibid., at 124.
368
Ife, Human Rights and Social Work, supra note 3, at 10.
57
claims in a way that is relevant to the life situations of the people involved. Often,
international perspectives are translated ‘down’ more than grassroots perspectives are
translated ‘up’ – and there is a real risk that e.g. women’s own experiences are not heard in
the process.369
Who gives meaning to human rights?
When I write about ‘giving meaning to human rights’, I do not mean norm creation, i.e., the
drafting of new internationally recognised human rights norms. I am primarily referring to
individuals and groups giving meaning and content to the human rights concept as they set out
to achieve rights that are meaningful to them. This is not only about actors pushing for new
legal interpretation of existing norms, although this is part of the meaning-giving process. The
process does not take place in a vacuum: the legal documents defining human rights and the
structures surrounding the international human rights system naturally influence how actors
ultimately give meaning to human rights, and the kind of locally manifested interpretation of
the human rights concept we will observe. Human rights are always interpreted and
understood in a local context and these local human rights discourses are relevant when
understanding the role human rights play within various contexts.
‘Human rights from below’ operates from a starting point where human rights are
constructions defined by human beings in social, political, and cultural contexts – and it is
what Jim Ife calls the act of definition that is the primary concern.370 I prefer to call this
process a ‘meaning-giving-process’ instead of a ‘defining-process’. As Koskenniemi points
out: “The interpretative techniques lawyers use to proceed from a text or behaviour to its
“meaning” create (and do not “reflect”) those meanings.”371 My starting point is that the
meaning of human rights is created in social, political, and cultural processes, not only by
lawyers and human rights experts but also by rights-holders claiming human rights. However,
actors have unequal power to shape and reshape meanings in these fields. Moreover, words
may be interpreted differently by different actors such as by activists and their targets,
implying that there are limits to the capacity of the ‘producers’ of discourses to control the
meaning given to words and signs.372 ‘Meaning’ is constantly created and constantly
challenged – at all levels. The local/national and transnational levels interact. Consensus is the
result of a hegemonic process in which some actors have made their position seem the
universal position.373
Because of these tensions, I agree with Ife that the questions of who defines the human rights
concept, and who is excluded, are important. In what context does this process take place?374
In the deliberative school, that is dominating human rights discourse at the moment, human
rights are accepted as being defined in legal documents and agreements. These are drafted and
agreed upon by small groups of people: politicians, diplomats, academics, opinion leaders and
some human rights activists. For a long time, they were predominantly privileged white
men,375 and particularly during the formulation of UDHR representatives of only a few states
dominated the scene (the cluster of Western and European states around the United States,
369
Merry, Human Rights and Gender Violence, supra note 287, at 216.
370
Ife, Human Rights from Below, supra note 8, at 134.
371
Koskenniemi, From Apology to Utopia, supra note 301, at 597. Emphasis in original.
372
See Sally Engle Merry, “Transnational Human Rights and Local Activism: Mapping the Middle”, 108
American Anthropologist (2006) 38-51, at 41-41.
373
Koskenniemi, From Apology to Utopia, supra note 301, at 597.
374
Ife, Human Rights from Below, supra note 8, at 134.
375
Ibid., at 126.
58
that dominated the UN). Since 1945, and the adoption of the UDHR, the circle of actors
involved in the human rights movement, and also in standard setting, has expanded rapidly.376
Recently, the voices of women and people from non-Western backgrounds have also gained
influence in human rights discourse and have impact on how human rights are defined in
documents. However, human rights still remain largely a discourse of the powerful about the
powerless,377 thereby contributing to a discourse of domination and disempowerment. Human
rights discourse is dominated by the voices of the privileged,378 speaking a specialised, often
technical, language associated with a group of professionals that are part of global elites.379
This inevitably has an impact on how human rights are perceived and applied by less
powerful groups. At the same time, another kind of meaning-giving process is taking place,
largely outside of institutions and agents of international law. Actors such as Oxfam, together
with local groups, also contribute to giving meaning, or perhaps more accurately, they
challenge the dominant meaning given to human rights when they generate completely new
rights and reformulate existing rights in a way that makes sense to the people they work
with.380
The international movement for women’s human rights is another example of how activists,
‘from below’, influence the norm creating processes as well as the interpretative processes of
international human rights law.381 When reading about grassroots women’s groups one
receives the impression that the way human rights have been defined in international legal
agreements has always been resisted by these groups. They have always pushed for new
interpretations and also new legal norms.
Some even claim that this is the main value added: so far legal strategies to secure women’s
human rights have not brought about radical social change, but they have challenged
dominant social meanings and understandings of gender, difference, culture, sexuality as well
as the very meaning of human rights.382 This is of central importance as grassroots women’s
groups are not satisfied with a narrow, legalistic and formalistic understanding of the human
rights concept. I agree with Temma Kaplan that “we need a new language to explain what
grassroots women’s groups mean by human rights.”383 This is true not only for women’s
human rights, but also for other groups who have been marginalised in international and
domestic processes of norm creation and interpretation. An actor-oriented approach to human
rights questions the position of ‘experts’ as sole agents in the process of meaning-giving; it
376
Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, supra note 296, at 575.
377
Ife, Human Rights from Below, supra note 8, at 126. Emphasis in original. Merry also reminds us of the
urgency to include women in the making of the human rights framework so that we can move toward disrupting
the patriarchal shape of that framework. Merry, Human Rights and Gender Violence, supra note 287, at 231.
378
Ife, Human Rights and Social Work, supra note 3, at 117-118.
379
See Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley:
University of California Press, 2005) at xviii; Robert Archer, “The Strengths or Different Traditions: What Can
Be Gained and What Might Be Lost by Combining Rights and Development?”, 4 Sur International Journal on
Human Rights Law (2006) 81-89, at 86.
380
In the Strategic Plan of 2001 Oxfam committed itself to working for five rights: the right to a sustainable
livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to an
identity.
381
See Brooke Ackerly, Political Theory and Feminist Social Criticism (New York: Cambridge University
Press, 2000) 143.
382
Ratna Kapur, “Revisioning the Role of Law in Women’s Human Rights Struggles”, in Meckled-García &
Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human
rights Law (London: Routledge, 2006) 101-116, at 110-111. Emphasis added.
383
Temma Kaplan, “Women’s Rights as Human Rights: Women as Agents of Change”, in Marjorie Agosín
(ed.), Women, Gender, and Human Rights: A Global Perspective (New Brunswick: Rutgers University Press,
2001) 191-204, at 195.
59
contributes to rethinking and reframing human rights, and thereby also gives human rights
discourse a new language.
Concluding remarks
Writing from an actor-oriented perspective is the only way I, as an outsider, can write about
human rights in development work in Malawi, because it is a completely new social setting
for me. My argument is that human rights can play a meaningful role in development practice
if the understanding of the human rights concept is rooted in the lived realities of the actors
claiming them. At the community level there should be a public dialogue about the meaning,
source, and authority of human rights as well as forms and strategies for claiming them and
making them real in the everyday lives of the people. Having said this, the actor-oriented
approach does pose certain challenges. When actors living in a resource constrained
environment come together to the discuss development agendas and priorities they tend to
prioritise short-term needs instead of striving for long-term changes in structure and policy.
It is also important that some core values and ideas embedded in the legal documents that
constitute human rights law, such as autonomy, choice, bodily integrity, and equality,384 are
maintained and respected in the process. There should also be an aspiration of universality:385
that what constitutes ‘our’ human rights also constitutes ‘your’ human rights. However,
before going into the universality question we will examine some other debates that are
important for our understanding of why a conventional definition of human rights is too
limited for the purpose of contesting the status quo in favour of less powerful groups.
2.2.4 Human rights and agency
Norman Long, the founder of the actor perspective, defines agency, as “the knowledgability,
capability and social embeddedness associated with acts of doing (and reflecting) that impact
upon or shape one’s own and other’s actions and interpretations.”386 In general terms, agency
assumes that the individual actor has the capacity to process social experience and to find
ways of coping with life, even under the most extreme forms of coercion.387 Individuals or
networks of people have agency, and they may also attribute agency to objects and ideas,
which can shape their perceptions of what is possible.388 Human rights can potentially be an
idea that expands perceptions of what is possible.
The theoretical foundations for studies on agency come from Giddens, who linked agency to
power, saying that “an agent ceases to be such if he or she loses the capacity to ‘make a
difference’, that is, to exercise some sort of power.”389 Action is crucial for agency; and action
involves power in the sense of transformative capacity. According to Giddens, action depends
on the capability to make a difference. What is important is that when circumstances are such
that an individual (or group) has ‘no choice’ this is not to be equated with dissolution of
action as such.390 Having the power to make a difference can, under circumstances of social
constraint, be used to regulate one’s own inner state of being, rather than outer circumstances
384
Sally Engle Merry refers to inter alia these values in Human Rights and Gender Violence: Translating
International Law into Local Justice (Chicago: The University of Chicago press, 2006) at 221.
385
This concept is used by Ife, Human Rights from Below, supra note 8, at 213.
386
Norman Long, Development Sociology: Actor Perspectives (London: Routledge, 2001) at 240.
387
Ibid., at 16.
388
Ibid., at 240-241.
389
Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Cambridge: Polity
Press, 1984) at 14.
390
Ibid., at 15.
60
or events. Hirsch and Lazarus-Black have a dual meaning for ‘state’ as “institutionalized
political order” and “condition of being”.391
Agency scholars tend to put emphasis on the positive possibilities of purposive human action
and the transformative potential that comes with this. For example Hickey and Mohan’s
concept of radical political citizenship builds on the tradition of seeing agency as a range of
“sociopolitical practices, or expressions of agency, through which people extend their status
and rights as members of particular political communities, thereby increasing their control
over socioeconomic resources”.392 Cleaver warns that believing too much in active exercise of
agency through purposive human action and its transformative potential may, however, lead
to that we romanticise procrastination as resistance. He points out that decision-making
processes and the exercise of agency in these contexts may be contradictory in their social
effects; there are complex constraints on the exercise of agency, especially for poor and
marginalised individuals and groups.393 I agree with Cleaver that in all social processes that
potentially lead to transformation there are transformation and tyranny, solidarity and conflict,
articulation and mutedness, enablement of agency and constraint of structure.394
My position is that of constructivist research which assumes that people, who have agency,
are both socialised into their situations and capable of transformative actions.395 As human
beings they have purposes and goals, or ‘intentions’. These intentions affect whether and
when people choose to take transformative actions that delegitimise, destroy or rebuild
structures.396 Therefore, agency is not seen as being in opposition to structure, as is often the
case.397 Actions taken by actors can support or oppose dominant discourse. New discourses
may shift people’s worldviews.398 This is not, however, always a result of conscious action.
“People consciously and unintentionally replicate and challenge institutionalized routines and
prevailing assumptions”.399
Human rights are sometimes celebrated as giving agency to ordinary people and groups – but
I claim that it is doubtful that agency is possible if human rights are seen as a system that has
already decided what people ‘ought to desire’. Speaking one’s desires and naming the
direction of change one would like to see is crucial for agency. Baxi relates agency to the
questions: “Who speaks through us when we speak about human rights? And on whose behalf
may we speak?”400 These are important questions especially in the development context when
human rights are translated into locally relevant terms.
391
See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 1 and 13.
392
Gils Mohan and Sam Hickey, “Relocating Participation within a Radical Politics of Development: Critical
Modernism and Citizenship”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 59-74, at 66. See also Frances Cleaver, “The Social Embeddedness
of Agency and Decision-Making”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 271-277, at 271-272.
393
Cleaver, “The Social Embeddedness of Agency”, supra note 392, at 272-273.
394
Ibid., at 276.
395
Klotz and Lynch, Strategies for Research, supra note 1, at 59.
396
Ibid., at 45.
397
Stammers discusses the agency-structure problem in Stammers, Human Rights and Social Movements, supra
note 4, at 25. Sztompka makes a distinction between ‘sociology of systems’ (i.e., structure) and ‘sociology of
action’ (i.e., agency). See Piotr Sztompka, Trust: A Sociological Theory (Port Chester: Cambridge University
Press, 1999) at 1. The discussion on agency-structure is also related to power (as ‘power over’ and ‘power to’)
and empowerment, see chapter 2.4.7.
398
Klotz and Lynch, Strategies for Research, supra note 1, at 44.
399
Ibid., at 7.
400
Baxi, The Future of Human Rights, supra note 358, at xiii.
61
People living under difficult conditions have often, but not always, abandoned the idea that
they ‘can make a difference’. Therefore, if agency is the starting point for development, and it
often is claimed that it is, it is important to put these people back in the drivers’ seat when
action is planned for and when claims are made. However, structural obstacles and social and
political processes often prevent poor people’s claims from being heard, seen, and reflected in
the definition, interpretation, and implementation of rights at the national and local levels, as
stated by Moser and Norton.401 When political space is opened up, it allows different
configurations for human agency and offers differing possibilities to challenge the status quo.
By ‘stretching’ the political space in which individuals and groups are able to exercise their
rights and participate in decisions that affect their lives,402 opportunities for agency are
created.
However, many people all over the world are unwilling to assume agency and prefer to be
‘passive beneficiaries’, maybe because they have been treated as such all their lives.
Sometimes structures and discourses used by development and human rights institutions
reinforce the victimisation instead of creating conditions for agency.
2.2.5 The political element of human rights
Academics and activists understand the role of ‘politics’ in human rights discourse in very
different ways. The way the notion ‘political’ is used here is not to suggest that human rights
commitments are nothing more than a reflection of a states’ power and interests403 (policy-
oriented ‘realism’). Instead this chapter operates from the starting point that human rights,
especially through social movements, have become both the object of political struggle and a
mode of political action.404 There is, however, still some resistance against seeing the political
character of human rights. Mutua argues for a need to become conscious of how the
abstraction and apoliticisation of human rights “obscure the political character of the norms”
human rights discourse seeks to universalise,405 and he is not alone in raising these arguments.
In order to understand the debate about the political or apolitical character of human rights we
need to look back in history. Costas Douzinas goes as far back as feudal society, claiming that
political power, economic wealth, and social status coincided in the same individual during
this era. One of the main innovations of natural rights was to remove politics from society,
and depoliticise the economy, as a way of bringing to an end the automatic identification of
political leadership with the economically dominant classes. As a result, politics became
“confined into the separate domain of the state.”406 Over time, as human rights expanded to
touch almost every part of daily life and politics, the main contemporary effect of human
rights, Douzinas claims, “is to depoliticize politics itself.”407
Here he refers to a distinction between ‘politics’ and ‘the political’, which builds on the
insights of the Frankfurt School regarding the managerial and anti-ideological direction of
401
Moser and Norton, To Claim Our Rights, supra note 46.
402
Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note 70, at 261 and 264.
403
Compare with Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash against the Human Rights Regimes”, 102 Colombia Law Review (2002)
1832-1911, at 1842.
404
Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (UK: Routledge-
Cavedish, 2007) at 101.
405
Mutua, Human Rights: A Political and Cultural Critique, supra note 343, at 3.
406
Douzinas, Human Rights and Empire, supra note 404, at 101.
407
Ibid., at 102.
62
parliamentary politics in the West.408 The way I understand this is related to what
Koskenniemi refers to when he writes that “under the liberal theory of politics […] the point
of law is to lead society away from politics, understood as an effort to move from a state of
contestation and conflict into one governed by rational rules, principles and institutions.”409
Koskenniemi’s own view is that international law is always ingrained in “the system of
distribution of material and spiritual values in the world.” When this is accepted, the task of
anyone wanting to use international law or human rights law as a counter-hegemonic strategy
(Koskenniemi refers only to lawyers, but writing from an actors’ perspective this is too
narrow) “would no longer be to seek to expand the scope of law so as to grasp the dangers of
politics but to widen the opportunity of political contestation of an already legalized
world.”410
Some argue that this is the main value added by human rights-based approaches to
development; they can potentially repoliticise areas of development work, 411 i.e. create
opportunities for political contestation. The question of power structures becomes very
concrete when one starts to view marginalised individuals and power holders as rights-holders
and duty-bearers. However, the trend of politicisation of humanitarianism and the fact that
some NGOs have embraced human rights as politics has also been criticised. Here we should
be clear that there are several trends taking place side by side and the
depoliticisation/repoliticisation is a nuanced one, dividing NGOs and other actors internally
and from one another.412
Other actors find the rhetoric of human rights appealing precisely because of its apolitical
nature.413 There can be no definitive conclusions drawn on this issue and there is a constant
tension between the tendency to use human rights as a seemingly neutral way of improving
governance, and using human rights to renegotiate political processes and challenge
development policies contributing to continuous non-realisation of human rights for the
poorest people.
Anthropologist Harri Englund has written extensively on the role of human rights talk in
governance in postcolonial states. He observes that while the situation of human rights is
invariably political, various participants in human rights discourse, deliberately or not, act in a
way that contributes to its depoliticisation. For example, the human rights projects that
Englund has studied avoided talking politics in a context where talk about politics was the
nation’s favourite pastime.414 This reflects the resistance against admitting a shift to politics in
the human rights movement. Human rights have become the core language of a new politics
of humanity that is beyond old ideological contests of left and right.415
However, in various countries we start to see examples indicating that international and
national NGOs involved in rights-based community development have been forced to shed
their “apolitical” attitude and become involved in advocacy about policies to facilitate spaces
408
Douzinas, Human Rights and Empire, supra note 404, at 102.
409
Koskenniemi, From Apology to Utopia, supra note 301, at 599.
410
Ibid., at 615. Emphasis added.
411
Slim, “A Response to Peter Uvin”, supra note 57, at 3; Cornwall and Nyamu-Musembi, “Putting the ‘Rights-
Based Approach’”, supra note 44, at 1415-1427; Gready and Ensor, “Introduction”, supra note 70, at 23.
412
Gready and Ensor, “Introduction”, supra note 70, at 33.
413
For example, Jungar and Oinas find that the Treatment Action Campaign in South Africa often uses a de-
politicizing human rights rhetoric. Katarina Jungar and Elina Oinas, “A Feminist Struggle? South African HIV
Activism as Feminist Policies”, 11 Journal of International Women’s Studies (2010) 177-191, at 187.
414
Harri Englund, Prisoners of Freedom: Human Rights and the African Poor (Berkley: University of California
Press, 2006) at 31-32.
415
Moyn, The Last Utopia, supra note 38, at 227.
63
for disadvantaged and less powerful groups to be heard in governance structures at all
levels.416 What this thesis calls for is to be more conscious and honest about the political
element of human rights.
If human rights are conceived of as only a formal legal project, their counter-hegemonic
potential remains rather limited. It is when human rights are part of a political struggle for
social change, in which law is seen as only one among many possible tools to be used against
oppression, that human rights have empowering potential.
2.2.6 Human rights and legalization
Douzinas ends his chapter on the politics of human rights by stating that exclusion,
domination, and exploitation are brought to the surface and awareness through human rights
claims. Often such struggles, however, frame their resistance in terms of legal and individual
remedies, which, in the case of success, lead to “small individual improvements and a
marginal rearrangement of the social edifice.”417 The way I understand this is that through
framing political claims as legal claims, human rights contribute to depoliticising politics.
Further legalisation of human rights, consciously or unconsciously, hides the political element
of human rights.
For obvious reasons, legal bodies have the authority to define and determine the limits and
extent of legal human rights. Therefore, because the legal sphere and international human
rights law have come to dominate human rights discourse, ‘human rights’ themselves are
often understood in terms of legal provisions. This phenomenon can be called
‘legalisation’.418 There are also other ways of understanding the legalisation phenomena, e.g.
“as a particular form of institutionalization characterized by obligation, precision, and
delegation,”419 but this is outside the scope of this chapter.
The predominant starting point for many studies by social scientists is to accept a legal
definition of human rights.420 This is also the case for studies on the relationship between
human rights and development. Most development agencies operate with some sort of legal
definition of human rights, which would fall between the natural school and the deliberative
school. There are, however, a growing number of international and national NGOs and social
movements that have adopted their own definition of human rights, which departs from
international human rights law. Oxfam is one such organisation. Oxfam sees the potential and
416
For an example from Kenya, see Celestine Nyamu-Musembi and Samuel Musyoki, Kenyan Civil Society
Perspectives on Rights, Rights-Based Approaches to Development, and Participation (Brighton: Institute of
Development Studies, 2004) at 1. Available at http://www.ids.ac.uk/files/Wp236.pdf, visited 10 May 2012.
417
Douzinas, Human Rights and Empire, supra note 404, at 109-110.
418
Saladin Meckled-García and Basak Cali, “Lost in Translation: The Human Rights Ideal and International
Human Rights Law”, in S. Meckled-García & B. Cali (eds), The Legalization of Human Rights:
Multidisciplinary Perspectives on Human Rights and Human rights Law (London: Routledge, 2006) 11-31, at
12.
419
Kenneth W. Abbott et al, “The Concept of Legalization” in Judith L. Goldstein, Miles Kahler, Robert O.
Keohane & Anne-Marie Slaughter (eds), Legalization and World Politics (Cambridge: The MIT Press, 2001) 17-
35 at 17.
420
Basak Cali and Saladin Meckled-García, “Introduction: Human Rights Legalized – Defining, Interpreting,
and Implementing an Ideal”, in S. Meckled-García & B. Cali (eds), The Legalization of Human Rights:
Multidisciplinary Perspectives on Human Rights and Human rights Law (London: Routledge, 2006) 1-8, at 2.
Examples of political and social science studies that use a legal definition include Todd Landman, “Measuring
Human Rights: Principles, Policy and Practice” 26 Human Rights Quarterly (2004) 906-31; Hans-Otto Sano and
Lone Lindholt, Human Rights Indicators: Country Data and Methodology (Copenhagen: Danish Institute for
Human Rights, 2000); Norwegian Agency for Development Cooperation, Handbook in Human Rights
Assessment: State Obligations Awareness and Empowerment (Oslo: NORAD, 2001).
64
power in applying a rights language, but is wary of legalisation. It has formulated a list of
rights which made sense to Oxfam’s staff and counterparts around the world,421 but has no
direct reference to human rights law, although we can see parallels.422 Since the empirical part
of this thesis makes an analysis of an Oxfam programme in Malawi, I find it motivated me to
question whether a legal definition of human rights is the only valid way of approaching the
human rights concept and phenomenon. This study finds that a legal definition of human
rights is too limiting in the context of human rights playing a meaningful role for people
striving to improve their lives (doing ‘development’). A legal definition of human rights is
natural when approaching human rights as obligations of states, including Malawi, but is, for
reasons that will be described below, not sufficient when doing human rights work at the local
level with people and groups.
The starting point for this study is that human rights law is never an end in itself, only a
means. Sometimes other approaches are more effective in reaching an end such as social
justice. It remains an open question whether integrating human rights law into development
efforts is the most effective approach of addressing issues such as inequality, food insecurity,
and promoting social justice. We need empirical evidence showing the value of human rights-
based approaches to development. We also need to know more about how the human rights
concept is translated into local sites of struggles over justice, equality, and resources.
Nevertheless, at times the law in general and human rights law in particular does play an
important role in challenging the status quo and is naturally not irrelevant from the
perspective of this thesis.
2.2.7 Human rights law and change (contesting the status quo)
Hegemony and counter-hegemony
Law has been central to the neoliberal restructuring of the world and as such it is, in the words
of Randeria “a prism through which to capture some of these transformations, and the
resistance to it, in the South.”423 There is a rich scholarly work on power, hegemony, and
resistance indicating that the law is simultaneously a maker of hegemony and a means of
resistance.424 Resistance is evidence that subordinate people are capable of questioning
hegemony through diverse oppositional tactics. Through oppositional ideologies and
behaviour, people confront dominant worldviews. Hegemony and resistance are not mutually
exclusive; usually there are opportunities for resistance (and change) in the same process that
can also transpire to be a factor contributing to structural reproduction.425 Hegemonic
421
Marjolein Brouwer, Heather Grady et al, “The Experiences of Oxfam International and its Affiliates in
Rights-Based Programming and Campaigning”, in P. Gready and J. Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 63-78, at 65.
422
In the Strategic Plan of 2001 Oxfam committed itself to working for five rights: the right to a sustainable
livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to an
identity.
423
Shalini Randeria, “Domesticating Neo-liberal Discipline: Transnationalisation of Law, Fractured States and
Legal Plurality in the South”, Wolf Lepenies (ed.), Entangled Histories and Negotiated Universals: Centers and
Peripheries in a Changing World (Frankfurt a.M.: Campus Verlag) 146-182 at 175.
424
See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 9.
425
Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 8-9.
65
processes and oppositional practices transform people and polities through producing
“contested states”;426 and are therefore inextricably linked to law.427
Ratna Kapur writes that “law is a complex and contradictory discourse”, suggesting that at
times “the process of legalization of human rights has reinforced the subordination of the
‘victim’ of human rights violations”, while at other times “human rights law has been an
important source of resistance and change”.428 Moreover, Mamdani repeatedly highlights that
the discourse on rights is a contradictory one, in both the ‘Western’ and contemporary African
context (the context he writes about). “At certain historical moments, it has been a rallying cry
for popular movements against arbitrary rule; at other moments, it has been the standard used
by privileged minorities that sought a legal umbrella under which to preserve and reproduce
these privileges.”429 Here we come back to the question of discourses of international law and
human rights law as hegemonic and counter-hegemonic. If human rights are to play a counter-
hegemonic function, that is questioning and contributing to reshaping the status quo, it is
important to first be aware of how often they fail to have this function.
Rajagopal argues that counter-hegemonic power includes various types of resistance, and for
human rights discourse it means being engaged in counter-hegemonic struggles ranging from
anti-war protests to market access for agricultural products for poor countries. Human rights,
being “the pre-eminent global moral discourse of our time”, could potentially play an
important role in counter-hegemonic international law – but “instead human rights – or to be
accurate, a broad language of ‘freedom’– has become the foundation for a hegemonic
international law.”430 Furthermore, Koskenniemi claims that international law, and human
rights law as one of its components, more often than not can be seen as maintaining the status
quo. He gives the example of how “contingent and contestable” aspects of the world have
begun to seem “natural and unavoidable” through legal rules that liberate powerful actors. He
asks why concepts and structures of international law, which are in themselves indeterminate,
nonetheless seem to emerge on the side of the status quo?431
One is free to disagree with Rajagopal and Koskenniemi on this issue, but it is hard to deny
that human rights discourse, together with the discourses of good governance and
development, maintain an image of knowing what to do and how to do it in a way that is
superior to other ways. Be it in education, health, or the justice system, human rights, good
governance and development all offer techniques, goals and methods for realising a vision for
reshaping society following the liberal model.432 The denial of what Obiora Chinedu Okafor
calls “African agency in the governance of Africa’s own societies” is widespread and
characteristic of the current international structure in which human rights discourse tends to
play a hegemonic role rather than a counter-hegemonic role. Advancing an actor-oriented
approach to human rights and development would perhaps reveal new opportunities for
human rights to be used as a strategy of resistance, questioning structures of domination and
contributing to agency.
426
Hirsch and Lazarus-Black have a dual meaning for ‘state’ as ‘institutionalized political order’ and ‘condition
of being’. “Contestations over the ‘state of being’ of individuals also implicate social struggles involving
political ‘states’”. See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 1 and 13.
427
Ibid., at 13.
428
Kapur, “Revisioning the Role of Law”, supra note 382, at 102-103.
429
Mamdani, “Social Movements”, supra note 354, at 17.
430
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 68.
431
Koskenniemi, From Apology to Utopia, supra note 301, at 225.
432
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 69.
66
The ‘spiral model’ of human rights change
In legal human rights research there are, as far as I know, no theories of change concerning
the role played by human rights law in processes leading to greater adherence to human rights
standards. International legal scholars tend to focus on success stories of altered domestic
practices to support the assumption that international law is an efficient way to engage in
processes of change. In political science, by contrast, we can find some attempts to develop
empirically testable hypotheses about whether, and under what conditions, legal rules are
effective in changing government behaviour. International relations scholars have generated a
number of theories about the relative importance of different explanatory variables (law is one
of these variables) in changed government practices.433
This study is not concerned only with change defined as altered domestic practices, but sees
social change as a broader process that is more difficult to define and test empirically.
However, one theory of change, the so called ‘spiral model’ of human rights change is
presented below in order to illustrate the need to develop new theories in human rights
research.
The ‘spiral model’ is interesting and relevant for this study because it relies on insights of
social constructivism, meaning that the model of human rights change by Risse, Ropp,
Sikklink et al differs from e.g. rational choice theorists. The authors argue that the social
identities of actors are important factors in the process of change. As actor’s identities can be
reshaped in discursive processes, transnational advocacy networks often engage in
argumentative processes with norm-violating governments. However, this is in itself not
enough for change to occur: sustained improvements of domestic human rights conditions
require domestic institutionalisation of international norms.434 The authors have developed
what they call a “socialization model” to explain the conditions needed for “domestic actors
to internalise the rules and norms emanating from international human rights regimes.”435
This model resonates with what Merry points to as the reasons why states choose to enter into
human rights treaties. She believes these reasons are linked to “claims to civilized status in the
present international order, much as ideals of civilization provided the standard for colonized
countries during the imperial era.”436 Shaming of non-compliant governments is a cultural
system “whose coin is admission into the international community of human-rights-compliant
states.”437
Risse, Ropp, Sikklink et al investigated eleven countries, each of which started in a phase of
repression, even though the degree of human rights abuses varied.438 In the beginning of the
“socialization process” these governments did not perceive any pressure to comply with the
norms, according the findings of the authors. (This is difficult to believe, but maybe domestic
resistance was of a nature that is difficult to investigate after many years.) Risse and Ropp
claim that “it was the task of transnational advocacy networks to create such adaptational
pressure in the first place.” Later in the stages of the ‘spiral model’, they claim that there
began to be resonance between domestic audiences and international human rights norms.439
433
Helfer, “Overlegalizing Human Rights”, supra note 403, at 1834-1835.
434
Thomas Risse and Stephen C. Ropp, “International Human Rights Norms and Domestic Change:
Conclusions”, in Risse, Ropp & Sikkink (eds), The Power of Human Rights: International Norms and Domestic
Change (Cambridge: Cambridge University Press, 1999) 234-278, at 236-237.
435
Ibid., at 271.
436
Merry, “Constructing a Global Law”, supra note 12, at 949.
437
Ibid., at 943.
438
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 240.
439
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 272.
67
(Viewing these findings from an actor-oriented perspective on human rights, it may be the
case that there was resistance already in the first place but this resistance was not framed in a
language that at the time fitted international human rights norms. Relying on research by
Merry, one can assume that there were “mediators” and “translators” who translated
local/domestic concerns into a transnational agenda.440 What was lost and what was gained in
this process one can only speculate about.)
Nine of the eleven countries investigated by Risse, Ropp, Sikklink et al. went through a
“denial” phase when the government rejected the very notion of international human rights
jurisdiction. At the time of publishing their findings (1999), all the countries had moved
towards “tactical concessions”.441 This is the third phase in the spiral, which is characterised
by the fact that “the norm-violating government is forced to make tactical concessions to the
international human rights community.” According the Risse and Ropp, this gives the
domestic opposition opportunity to start its own process of social mobilisation. If it links up
with transnational networks, the government is under pressure ‘from above’ as well as ‘from
below’. If this pressure is sustained, a full implementation of human rights norms is likely to
take place, and this marks the final stage of the spiral model, the so called “rule-consistent
behavior”.442
According to the authors, transnational networks have a dual task in the process of
internalising rules and norms emanating from international human rights regimes into
domestic practices. First, these networks remind “Western states of their own collective
identities as liberal democracies and urge them to act upon these identities in the human rights
arena.” Second, they “teach human rights norms to norm-violating governments.”443 The in-
built assumption is that change is inspired by transnational networks and domestic audiences
follow later on as there starts to be resonance between them and international human rights
norms.444 This conclusion shows how much weight is given to transnational networks as
‘teachers and preachers’ of human rights. They also provide evidence to those who accuse
human rights discourse of being ‘foreign’ or a continuation of imperialism.
The ‘spiral theory’ feels outdated and there is need for theories that suit our contemporary
time when human rights norms are accepted by almost all regimes and human rights rhetoric
is used on all levels by a multitude of actors. In Malawi, human rights (in practice ‘freedoms’)
are talked of and referred to by government as well as non-governmental actors; they have
become part of the official discourse. There have also been revisions of laws in order to live
up to the international treaty provisions (this process is of course far from complete).
However, there is no theory about whether all of this makes a difference to the population.
The question arising from the ‘spiral model’ of human rights change is: what comes after the
fifth and final stage of change (‘norm-consistent behaviour’)? Can human rights be effectively
used as a tool (political and legal) by rights-holders to improve the conditions of their lives? A
certain level of institutionalisation and acceptance of human rights norms is only a first step
and cannot as such be equated with ‘success’ or social change. It might be that human rights
are foremost used by domestic elites for hegemonic purposes.
Moreover, there is need for a theory of change concerning the role of human rights to be
defined more broadly, not only as ‘legal freedom rights’, but as entitlements that groups of
people feel justly entitled to. Studying grassroots women’s groups, and the way they apply
440
See Merry, Human Rights and Gender Violence, supra note 287.
441
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 235.
442
Ibid., at 238.
443
Ibid., at 271.
444
Ibid., at 272.
68
human rights discourse to achieve change in their lives, would be a good case study to
develop and test a hypotheses concerning the role of human rights as a counter-hegemonic
tool in struggles for social change. I will not develop such a theory here, but I want to
highlight that lack of theories in studying human rights forces researchers to be humble about
the possible role of human rights in domestic processes of change. We cannot assume that
official human rights advancement automatically leads to progress and success.
2.2.8 The question of universality, relativism, particularity and context
Dilemmas and debates
The human rights concept can be meaningful and respectful of the agency of the actors when
working with an actor-oriented perspective on human rights from below, but it is open to
many difficult questions about context and universality.
In the Vienna Declaration and Programme of Action of 1993 human rights were presented as
universal, indivisible and interdependent, and interrelated. It was stated that “[t]he universal
nature of these rights and freedoms is beyond question.”445 However, when one takes part in
scholarly debates as well as discussions at the grassroots level the universal nature of human
rights is far from a settled matter. Behind the solemn statements in UN declarations there is
considerable disagreements and contestations over the meanings attached to the human rights
concept. Moreover, in the real world where people struggle to achieve human rights, things
are messy, complex, and contradictory. In people’s lived experiences human rights are not
necessarily universal and indivisible, nor are they inalienable or inabrogable, two other
principles which often are attributed to the human rights concept.446
The question of whether human rights standards provide a universal standard to be applied
uniformly, or whether they are relevant to the social context has characterised the human
rights movement ever since the adoption of the Universal Declaration.447 In the 1990s the
debate was rather black-and-white: universalists firmly believed that the power of human
rights lies in their universality and human rights should be adopted in all cultural contexts
despite differences in local normative systems. Relativists claimed that human rights ideas
should not be imposed on societies with different value systems.448 As I will show, the debate
has become somewhat more nuanced and the positions are no longer so entrenched. There are
ways around these dichotomous views leading to a more sophisticated way of dealing with
universalism and relativism as well as human rights and culture. I have already called for a
more nuanced way of giving meaning to the human rights concept. Furthermore, I will, in the
following, refer to research that questions conventional ways of defining ‘culture’. However,
as these dichotomous and essentialised views are still strong in the more conventional human
rights discourse I will devote some space to understanding this dilemma.
For many human rights scholars, universality is still beyond question. “Universality is at the
core of the global human rights regime,”449 is a commonly held conception. Yet, Jack
445
Adopted at World Conference on Human Rights in Vienna, 1993, UN doc. A/CONF.157/23, paras. 1 and 5.
446
Ife, Human Rights from Below, supra note 8, at 86. Inalienability means that human rights cannot be taken
away from an individual or group; inabrogability means that they cannot be given away, voluntarily or as trade-
off for some other privilege. Ibid., 84.
447
Celestine Nyamu-Musembi, “Towards an Actor-Oriented Perspective on Human Rights”, in Naila Kabeer
(ed.), Inclusive Citizenship (London: Zed Books, 2005) 31-49, at 32.
448
Merry, “Transnational Human Rights and Local Activism”, supra note 372, at 40.
449
Donnelly, “International Human Rights”, supra note 293, at 31. Bielefeldt, “Philosophical and Historical
foundations of Human Rights”, supra note 295, at 3.
69
Donnelly argues that the question ‘are human rights universal or relative?’ is
misformulated.450 I agree with Donnelly and this is also supported by the evidence from the
field work by Thoko Kaime that reveals the need for a new discursive framework that moves
the debate beyond relativism and universalism. Universalism and relativism are simply
inadequate as analytic tools for describing the role of human rights in social relationships.451
However, before looking at possible solutions to the dichotomy between universalism and
relativism it is necessary to have a better understanding of the dilemmas and why these
debates have been so polarised in human rights discourse.
The ‘natural rights’ argument for universality is that since human rights are not given by a
sovereign and therefore cannot be taken away by a sovereign, nor are they based on criteria
such as age, gender, race or caste, human rights should provide a universal standard.452 An
argument against this view is that the ‘natural rights tradition’ is only one among many
schools of thought behind human rights discourse. According to other views rights are not
natural and eternal but always emergent and historically specific.453
The ‘formalist argument’ for universality is simply that since most states have ratified a
number of binding international human rights treaties, human rights standards are universal.454
For example, Donnelly argues that human rights enjoy ‘international legal universality’
because virtually all states accept the authority of the Universal Declaration and as of the end
of 2009 the six core international human rights treaties had on average 170 parties. This
means that in contemporary international society there is a ‘hegemonic’/authoritative system
of international legal principles that gives an element of universality to internationally
recognised human rights.455 Donnelly, however, admits that this universality can be
relativised by stressing the incompleteness of the human rights system, in the sense that a
number of states continue to resist these hegemonic international norms.456
Despite UDHR being cited today with near-universal approval, we have to keep in mind that
it was a very narrow group of actors that launched the UDHR. Mutua points out that the few
Southern states present in the formulation of UDHR, such as India, Lebanon, Burma,
Pakistan, the Philippines, Ceylon, and Syria, had only recently gained independence. He
reminds us that “the nations that drafted the UDHR directly colonized three quarters of the
earth and enforced brutal, racist, and even genocidal policies in many places.”457 Only four
African countries were members of the UN at the time. It is also relevant that the very concept
of the nation state, with its constitutional order and bill of rights that African societies adopted
after independence, was a colonial imposition – not a result of internal political, social and
economic developments.458 For these reasons human rights lack legitimacy in many African
450
Donnelly, “International Human Rights”, supra note 293, at 32.
451
Thoko Kaime, “‘Vernacularising’ the Convention on the Rights of the Child: Rights and Culture as Analytic
Tools”, 18 International Journal of Children’s Rights (2010) 637-653, at 639 and 642.
452
See Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 32. Bielefeldt calls this a
quasi-biological interpretation or a tendency to see human rights deeply rooted in the Occidental tradition,
according to which the human being has been ‘created in the image of God’, and endowed a special rank above
all other creatures. This is a very apolitical interpretation (compare to the four schools of human rights thinking).
Bielefeldt, “Philosophical and Historical foundations of Human Rights”, supra note 295, at 10-11.
453
“Setting Universal Rights” in Cowan, Dembour & Wilson (eds.), Culture and Rights: Anthropological
Perspectives (Cambridge: Cambridge University Press, 2001) 27-30, at 27; Mutua, “Standard Setting in Human
Rights: Critique and Prognosis”, supra note 296, at 576.
454
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 32-33.
455
Donnelly, “International Human Rights”, supra note 293, at 33.
456
Ibid., at 34.
457
Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, supra note 296, at 576.
458
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 15.
70
societies,459 although the African Charter on Human and Peoples’ Rights adopted in 1981 has
contributed to increasing legitimacy and a growing African human rights discourse. Another
dimension of the legitimacy issue is the tension between elements of African cultural and
religious traditions and certain human rights norms, e.g. in the area of women’s rights,
children’s rights and rights of minority groups. Tensions naturally exist in all societies,
including Western ones, but these tensions seem to be very pronounced in African
societies.460
This is one reason why e.g. deliberative scholars refer to the incompleteness of the
international human rights discourse and make the argument that human rights principles as
currently constituted are not universal because they are shaped by distinctly Western
experience.461 All ideas, including human rights, emerge in a cultural context and cannot be
divorced from it. These cultural contexts vary and change; what will be counted as ‘human
rights’ will inevitably be different in different cultural contexts.462 These scholars, who refer
to the incompleteness of human rights, are using arguments labelled as ‘multicultural
universalism’ or ‘weak cultural relativism’ and claim that human rights could become truly
universal only if as many world cultures as possible contributed to shaping the discourse of
rights. The human rights movement should build on these various contributions rather than
work from a Western/Eurocentric conception of what human rights are.463
Typically there seems to be a contradiction between universalism, in the form of a
“transnational but European-driven conception of rights, and relativism, in the form of respect
for local cultural differences.” Rights and culture are, in this view, seen as possibly mutually
contradictory. However, seen in this way, the universalism/relativism debate essentialises
both culture and rights. In this context, human rights are understood as a Western idea, based
on Enlightenment traditions.464 Culture is understood as a homogenous and integrated system
of beliefs and values.465 This weakens the human rights movement: in the South human rights
advocates try to demonstrate that human rights are indigenous and relevant while “arrogant
outsiders” insist on “imposing Northern models and procedures”. The result is that dictatorial
states dismiss them as imperialist impositions and the energy of the Southern human rights
advocate is wasted.466 This leads to situations of “law in practice” being very different from
“law in the books”, a familiar phenomenon in many countries of the South. This is the case
especially when the latter are foreign legal transplants imported into a very different social
and political context. Attempts to globalise “legal particularities” overlook the fact that laws
reflect a long history of political contestation and compromises. When Western norms and
459
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 15. For an interesting
account on how African states and their legal experts have contributed to the UN human rights system, see
Mutoy Mubiala, “The Contribution of African Human Rights Traditions and Norms to United Nations Human
Rights Law”, 4 Human Rights International Legal Discourse (2010) 210-240.
460
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 16.
461
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 33-34.
462
Ife, Human Rights from Below, supra note 8, at 98.
463
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 33-34.
464
Sally Engle Merry, “Changing Rights, Changing Culture”, in Cowan, Dembour & Wilson (eds), Culture and
Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001) 31-55, at 32. Ife argues
that universal human rights, as conventionally understood, reflect a certain Western Enlightenment view of the
core concepts, ‘humanity’ and ‘rights’, that is inadequate for a more inclusive world where diversity is valued,
not feared. Ife, Human Rights from Below, supra note 8.
465
Merry, “Changing Rights, Changing Culture”, supra note 464, at 32.
466
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 8.
71
practices are diffused globally this does not happen without local translation and also
resistance. 467
In the postmodern world of relativism, multiple voices and fragmented realities, it is
sometimes held that there is no room for a universalist discourse on human rights, especially
since it has traditionally been a top-down discourse, and has difficulty dealing with difference
and diversity. According to postmodern critique the idea of human rights is too tightly
connected to the modernist project, and too western (or Eurocentric) to give a positive
contribution to the future. I agree with Ife that this is a critique we cannot fully ignore.468 I
also agree with the relativists that Western hegemony is a concern.469 However, a discourse of
difference needs to be balanced with discourses of unity, underlining what unites and brings
us together as human beings. A position that denies anything but the contextual, ignores the
fact that despite cultural differences, human beings are connected.470 It is from this
perspective that a discourse of ‘common humanity’ can be appealing and powerful. Due to
problems with the idea of the term ‘common humanity’, which brings us back to the natural
rights tradition, seeking some essentialised, fundamental humanity, Ife suggests ‘shared
humanity’ could be used when indicating commonalities between people. ‘Shared humanity’
can be explored through lived experience, but without identifying the single, ‘common’ form
of human condition applying to everyone.471 Through our ‘shared humanity’ human rights
have a universal element. However, the context in which this is expressed can never be
ignored.
Mahmood Mamdani challenges the debate on whether rights are of Western origin by arguing
that rights are defined by struggle. He makes a simple yet profound and clear observation:
“[w]here ever there was (and is) oppression – and Europe had no monopoly over oppression
in history – there must come into being a conception of rights.”472 He claims that the notion of
rights cannot have any fixed and immutable content; instead the content of rights must vary
from one historical circumstance to another, and from one social context to another.473 As
Nyamu-Musembi points out, when human rights are viewed from this perspective, they are
“both universal and particular: universal because the experience of resistance to oppression is
shared among subjugated groups the world over, but also particular because resistance is
shaped in response to the particularities of the relevant social context.”474 Human rights are
relevant for people living in any cultural contexts, whenever they struggle for justice.475
Africans have their own histories of the struggle for human rights, which are linked, but also
distinct from similar struggles in other parts of the world.476
The authors referred to above have in common the message that it is necessary to stop
thinking of universal/contextual as an either/or dichotomy. We need to explore a way of
thinking about them as both/and.477 This argument moves the debate on universality vs.
467
Randeria, “Domesticating Neo-liberal Discipline”, supra 423, at 163.
468
Ife, Human Rights and Social Work, supra note 3, 200 and 131.
469
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 17.
470
Ife, Human Rights from Below, supra note 8, at 98.
471
Ibid., at 130.
472
Mamdani, “Social Movements”, supra note 354, at 1-2.
473
Ibid., at 2. Bielefeldt notes that the European history of human rights provides only one example of various
obstacles, achievements, and failures in the long-lasting political struggle for human rights. Repeating the
European experience would naturally be impossible. See Bielefeldt, “Philosophical and Historical foundations of
Human Rights”, supra note 295, at 12 and 15.
474
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 43.
475
Bielefeldt, “Philosophical and Historical foundations of Human Rights”, supra note 295, at 15.
476
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 7.
477
Ife, Human Rights from Below, supra note 8, at 99.
72
particularism to a new level, an advancement on being trapped in the midst of trying to define
‘culture’ and arguing about into who’s culture human rights ideals fit or who’s culture they
fail to fit. It questions assumptions about opposition between rights and culture that were
fundamental during imperialism and to a large extent still remain part of the human rights
rhetoric.478 The starting point is then that both the concept of ‘culture’ and ‘rights’ are ever-
changing; change rather than stagnation is characteristic of rights and culture.479
‘Culture’ and the universality question
In these debates in particular and in human rights discourse in general there is a need for
conceptual clarification of ‘culture’ in the human rights praxis. Human rights tend to rely on
an essentialised model of culture, and fail to take advantage of the potential of local cultural
practices for change.480 Often ‘culture’ is put into opposition to the universal human rights
project and e.g. ‘Third World women’ are portrayed as victims of their culture in a way that
reinforces stereotypes and cultural essentialism.481 To give a concrete example from the area
of women’s rights: according to ethnographic field research by Merry, when government
representatives, members of the expert committee under the Convention on the Elimination of
all forms of Discrimination Against Women (CEDAW), or the convention itself invoke
‘culture’ in proceedings related to CEDAW, it is mostly as an obstacle to change rather than
as a resource or opportunity for change. According to this view ‘culture’ is fixed, static,
bounded, and isolated.482 The fact that transnational legal processes are engaged with cultural
transformation remains unspoken.483 At the same time, the human rights framework also
includes rights to culture.484 It is rights versus culture as well as rights to culture that have
preoccupied scholars from various fields as well as lawyers, bureaucrats, NGOs and lay
people, and engaged them in debates about the legal and political status which ‘a culture’
should or should not have.485
There are, however, more modern understandings of ‘culture’ as a continuous process of
creating new meanings and practices.486 Nyamu-Musembi argues that both cultural norms and
formal rights regimes offer opportunities as well as challenges in dealing with specific
situations of oppression. In reality, there are no clear cut lines; we cannot place the blame for
human rights violations on culture and pose universal human rights principles embodied in
formal laws as the solution.487 Culture consists of ideas and practices that are not homogenous
but continually changing because of contestation, new ideas, and institutions: “Cultural
discourses legitimate or challenge authority and justify relations of power.”488 Merry views
human rights as a means of producing new cultural understandings and actions. She sees
human rights monitoring processes as a gradual cultural transformation; in these legal settings
what is being produced is ‘culture’.489 However, mainstream social science has often failed to
478
Merry, Human Rights and Gender Violence, supra note 287, at 226.
479
See Kaime, “‘Vernacularising’ the Convention on the Rights of the Child”, supra note 451, at 64.
480
Merry, Human Rights and Gender Violence, supra note 287, at 11.
481
Kapur, “Revisioning the Role of Law”, supra note 382, at 107. See also Rikki Holtmaat and Jonneke Naber,
Women’s Human Rights and Culture: From Deadlock to Dialogue (Cambridge: Intersentia, 2011).
482
Merry, “Constructing a Global Law”, supra note 12, at 946.
483
Ibid., at 974.
484
Article 15 of the ICESCR protects the right of everyone to, inter alia, take part in cultural life.
485
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 4.
486
Merry, “Constructing a Global Law”, supra note 12, at 947.
487
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 44.
488
Merry, Human Rights and Gender Violence, supra note 287, at 11.
489
Merry, “Constructing a Global Law”, supra note 12, at 974.
73
study culture as a process shaped by factors such as the interplay between individual agency
and social structure.490
When focusing on multiple configurations and meanings representing “a network of
perspectives”, that emerge from a ‘situated analyses of rights’ as proposed in the actor-
oriented perspective on human rights,491 it is possible to avoid the age old dichotomies
between “human rights universals and cultural absolutes”. For example, non-discrimination of
children in an African context is not the perspective of human rights advocates alone but also
that of “ordinary people who claim no special knowledge of children’s rights.”492 It appears
that the most fruitful approach to the culture and universal human rights debate is viewing
‘rights as culture’493 instead of ‘rights versus culture’ or ‘rights to culture’.
Kaime draws the conclusion that human rights should be given a general enough meaning in
order to address the multiple configurations of meanings and perspectives that are and inform
individuals’ rights and which emerge from the contexts in which people live.494 Human rights
should be interpreted and transformed into practice in a way that raises legitimacy and gives
rise to pluralism that is neither universalist nor relativist but grounded in the reality of
people’s daily lives.495 Merry highlights the need to develop a framework that recognises
difference and specificity but at the same time enables a shared language of equity and
justice.496 Finding this kind of shared language is difficult as long as human rights discourse is
seen as the exclusive terrain of specialised (legal) experts.
2.2.9 Individual rights and collective rights
Another important debate in the search for and exploration of a meaningful human rights
concept that is relevant in a local context concerns individual rights and collective rights.
There has been cultural relativist critique claiming that human rights discourse downplays the
importance of the community and promotes an individualistic model of rights that does not fit
into non-Western way of life.497 The basis of the so called ‘Asian critique’ of human rights
has been that the human rights thinking inscribed in the UDHR and various UN covenants has
a strong focus on the human as an individual, rather than on humanity as a whole. Critics from
Asia argue that because of their individual bias, human rights are a colonialist attempt by
West to impose its view of humanity on others.498 (Ironically, the elites in e.g. Indonesia and
Singapore, two states that have been vocal in defence of ‘Asian values’, are highly
westernised. It seems that the rhetoric of cultural relativism in this case is more about political
opportunism than concern for cultural values.)499
It is true that in conventional human rights thinking there is a strong focus on the individual as
holders of rights. Individual rights are not to be found only in the field of civil and political
rights, but most ESC rights are addressed to individuals, and even ‘third generation’ rights
490
Allaine Cerwonka, “Nervous Conditions”, supra note 167, at 12.
491
Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447, at 39.
492
Thoko Kaime, “The Struggle for Context in the Protection of Children’s Rights: Understanding the Core
Concepts of the African Children’s Charter”, 58 The Journal of Legal Pluralism and Unofficial Law (2009) 33-
68, at 34 and 43.
493
This concept is used in Cowan, Dembour & Wilson (eds), Culture and Rights: Anthropological Perspectives
(Cambridge: Cambridge University Press, 2001).
494
See Kaime, “The Struggle for Context”, supra note 492, at 33.
495
Ibid., at 66.
496
Merry, Human Rights and Gender Violence, supra note 287, at 231.
497
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 44.
498
See Ife, Human Rights from Below, supra note 8, 93.
499
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 7.
74
such as the right to development contains an individual dimension.500 Human rights are
private in that they are claimed to adhere in the human person him- or herself (the argument
being that everyone has human rights by virtue of being human), unmediated by social
relations. They are consequently also individual: an isolated human being can in principle
exercise them. A human being holds rights not only against the state, but also against
‘society’, i.e., against his or her community or even family.501 (We can find examples of such
cases in Merry’s book on violence against women.)502 This is a radical departure from what
has been the norm in most human societies, in which collective and communal rights would
be preferred to individual rights.503
In different societies there are different ways of placing emphasis on individual rights/duties
and collective rights/duties. A liberal, conventional understanding of rights implies both
individual rights and individual responsibilities; a more social democratic tradition would
underline individual rights and collective responsibilities; in Asia, by contrast, the lines
between the individual, the society and the state are blurred by conceptions of duty, putting
emphasis on individual duties to contribute well-being of the collective; and finally a
communist ideal would subordinate the individual to the collective in terms of both duties and
rights.504 Human rights as defined in most international legal agreements reflect a certain way
of putting emphasis on individual rights and responsibilities in relation to collective rights and
responsibilities, although the normative preferences of many of the human rights instruments
that have been adopted since the Southern states gained more influence over the standard
setting process indicates that this is certainly not black-and-white. Many of the latter
instruments move away from a focus on individualism and aim at tackling issues affecting
groups or systemic social and economic problems that require radical solutions.505
Because of the Asian critique and as a response to advocacy on those parts of groups that are
often systematically denied human rights (e.g. women, indigenous peoples, people with
disabilities, and children) there has, in recent decades, been a growing interest in
understanding human rights collectively as well as individually.506 As we know there are some
human rights documents that contain human rights whose holders are groups as well as
individuals. The UN Declaration on the Rights of Indigenous Peoples507 is an example of a
document that incorporates rights regarded as belonging individually to members of
indigenous communities as well as rights regarded as collective, such as the right to live
freely as distinct peoples. The African Charter on Human and People’s Rights, adopted in
500
Martin Scheinin, “Characteristics of Human Rights Norms”, in C. Krause & M. Scheinin (eds), International
Protection of human Rights: A textbook (Turku/Åbo: Åbo Akademi University, Institute for Human Rights,
2009) 19-37, at 24.
501
Rhoda E. Howard, “Dignity, Community, and Human Rights”, in Abdullahi Ahmed An-Na’im (ed.), Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press,
1992) 81-102, at 82-83.
502
Merry, Human Rights and Gender Violence, supra note 287.
503
Howard, “Dignity, Community, and Human Rights”, supra note 501, at 83.
504
Ife, Human Rights from Below, supra note 8, at 94; Mutua, “Standard Setting in Human Rights”, supra note
296, at 576.
505
Mutua, “Standard Setting in Human Rights”, supra note 296, at 577. Examples would be the Declaration on
the Right to Development (1986), Declaration on the Rights of Indigenous Peoples (2006), and Convention on
the Rights of Persons with Disabilities (2006).
506
Ife, Human Rights from Below, supra note 8, at 93.
507
Adopted by the Human Rights Council on 29 June 2006 after more than twenty years of formal debates. See
Robin Perry, “Balancing Rights or Building Rights? Reconciling the Right to Use Customary Systems of Law
with Competing Human Rights in Pursuit of Indigenous Sovereignty” 24 Harvard Human Rights Journal (2011)
71-114.
75
1981, includes people’s rights to existence and self-determination,508 to economic, social and
cultural development,509 and to a general satisfactory environment.510 Moreover, the
International Covenant on Civil and Political Rights511 contains a true collective right, the
right of self-determination in Article 1.512
Developments of human rights law call into question rigid distinctions between individual and
community in thinking about human rights and rights claims. As with universalism and
context, it is essential to stop thinking about individual or collective rights, but instead
emphasise that all human rights can have both individual and collective aspects.513 Some
claims are collective in nature, such as indigenous communities’ claims for compensation for
use of their knowledge in medicine. A ‘situated analyses of rights’ as proposed in the actor-
oriented perspective on human rights, point to people’s own experiences of how individual
and community concerns and interest overlap, sometimes in harmony and sometimes in
tension. Sometimes it makes no sense to talk of individual rights unless the broader issue of
the group’s status as a rights-holding community is also addressed. This might be the case
with individuals belonging to a low caste: your status as a member of a particular group is
very central to how you are defined and treated in a particular social context.514 The challenge
is to not disregard the community context in which people are living, but at the same time not
legitimising a narrow definition of personhood based on status in hierarchical social
relationships.515
2.2.10 Indivisible and hierarchical human rights
A final debate that Nyamu-Musembi refers to when presenting the actor-oriented perspective
on human rights is that which revolves around the relationship between different sets of
rights. The issue that has been debated can in simplified terms be put like this: is the
relationship a hierarchical one so that there are certain rights that take precedence over other
rights? Or are all human rights indivisible and interdependent and interrelated,516 as made
clear in the Vienna Declaration and Programme for Action?517 This would imply that human
rights are non-hierarchical.
Internationally recognised human rights have traditionally been, especially before the Vienna
Conference on Human Rights in 1993, divided into different categories. A well-known
distinction that is often used is between three ‘generations’ of human rights: 1) civil and
political; 2) economic, social and cultural rights; and 3) ‘new’ or ‘third-generation’ human
rights, such as the right to peace, the right to development and environmental rights. This
concept of generations may be used to suggest an order of priority between human rights.518
Civil and political rights have been accorded stronger recognition in most legal frameworks
and are often treated as if they take precedence over economic, social, and cultural rights.519
In addition, the dominance of human rights discourse by the law and the legal profession has
508
Art. 20.
509
Art. 22.
510
Art. 24.
511
Adopted in 1966, entered into force in 1976.
512
These examples are raised in Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447.
513
Ife, Human Rights from Below, supra note 8, at103.
514
Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447, at 38-39.
515
Ibid., at 41.
516
Ibid., at 41.
517
Adopted at World Conference on Human Rights in Vienna, 1993, UN doc. A/CONF.157/23, para. 5.
518
Scheinin, “Characteristics of Human Rights Norms”, supra note 500, at 22.
519
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 41.
76
had consequences for the way in which human rights have been understood. Privileging civil
and political rights over other human rights, as these tend to be more readily justiciable and
thereby more easily dealt with through legal structures and processes, is one such
consequence.520 This is changing now that there are increasingly more efforts to deal with
ESC rights as justiciable rights.521
In the UN rhetoric today, and in the rhetoric of most NGOs, it is, however, almost taken as a
given that human rights are interdependent, interrelated, and indivisible (although it remains
more of a statement of intent than a reality).522 Indivisibility is also the starting point for
human rights-based approaches to development: civil and political rights mean little without
other categories of rights, and vice-versa. It is clear that in lived reality people do not
experience rights, or their deprivations, in a way that would make it possible to distinguish
between different sets of rights.523 Concrete examples of how this functions in reality are
raised in literature from within the development discourse.524
The interrelated nature of human rights seems to suggest that all human rights share common
characteristics, for example that they imply obligations on the part of duty-bearers.525 The
idea that there would be a clear difference between the three ‘generations’ or categories of
human rights, or even between the two first ones, is misconceived. While it is possible to
make a distinction between negative and positive obligations, this distinction does not follow
the three categories. Civil and political rights often require positive measures, including
measures that require resources, e.g. holding of elections.526 All human rights require
resources in order for realisation to take place. Moreover, it is possible to understand all rights
from the first two generations as having both individual and collective aspects, and also the
third generation contains rights that have individual dimensions.
Daniel Whelan has reviewed the ‘indivisibility and interdependence’ literature from the 1980s
and 1990s and writes that “the language of interrelatedness demonstrates equality of
importance or legitimacy of economic, social, and cultural rights in relation to civil and
political rights.”527 The rhetoric of indivisibility carries both conceptual and symbolic weight,
and the claim that the two categories of human rights are indivisible carries considerable
meaning. This rhetoric first emerged during the late 1940s and early 1950s, when the UN was
the scene for serious debates about how to codify the rights in the UDHR into binding
international law.528 Moyn points out that in the 1940s when the idea of human rights was
forged, there was some commitment to social equality, and social rights were comparatively
uncontroversial. However, the context for the breakthrough of the human rights movement in
the 1970s, that of totalitarianism and authoritarian rule, meant that social rights were not an
issue that featured on the agenda.529
As we know, the Universal Declaration makes no distinction between civil and political rights
and economic, social, and cultural rights. However, it was the intention of the UN
520
Ife, Human Rights from Below, supra note 8, 111.
521
See Sisay Alemahu Yeshanew, The Justiciability of Economic, Social and Cultural Rights in the African
Regional Human Rights System (Åbo: Åbo Akademi University Press, 2011).
522
See Gready and Ensor, “Introduction”, supra note 70, at 14.
523
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 42.
524
Gready and Ensor, “Introduction”, supra note 70, at 14.
525
Daniel J. Whelan, Indivisible Human Rights: A History (Philadelphia: University of Pennsylvania Press,
2010) at 4.
526
Scheinin, “Characteristics of Human Rights Norms”, supra note 500, at 24.
527
Whelan, Indivisible Human Rights, supra note 525, at 5. Emphasis in original.
528
Whelan, Indivisible Human Rights, supra note 525, at 6.
529
Moyn, The Last Utopia, supra note 38, at 222.
77
Commission on Human Rights to include only the first set of rights in a binding covenant.
The plan on behalf of the Commission was to later on draft further conventions and additional
instruments to cover other categories of rights. However, the General Assembly requested the
covenant to include ESC rights. The Commission made a redraft in 1951 but the following
year, after heated debate, the GA requested the Commission to draft two separate human
rights covenants, separating again the two categories of rights. The countries that lobbied for a
single legally binding covenant were concerned that ESC rights would never be embodied in a
binding treaty if this was postponed. They also wanted the West to give as much attention to
ESC right as to civil rights, a debate that also raised the issue of a guarantee for international
development resources. Other postcolonial states, such as India, on the other hand, recognised
that ESC rights would be primarily national responsibility – not a responsibility for the
international community – individual rights as they are.530
The GA decision of 1952 to divide the then-single Covenant into two separate treaties is often
referred to in literature on human rights. In the more recent literature, the focus for the reasons
behind this change of events is placed on Cold War politics and the ideological differences
between the United States and the Soviet Union. Mostly, these accounts overlook another
critical political factor that led to the division: the importance of ESC rights to emerging anti-
colonial and development agendas of newly independent states of the South. Among these
states there was also strong support for self-determination as a human right,531 an issue that is
highly relevant for the debate on the collective/individual nature of human rights. The debates
on the right to development sprung out of this rhetoric. Most industrialised states of the West
were opposed to the fact that the Declaration on the Right to Development framed some of the
rights as belonging to states instead of individuals.532 All of this is crucial for our
understanding of the role of human rights in development policy and practice. It seems that
the recipient states of development assistance and the donor states throughout history have
had quite a different emphasis in the discourse on human rights, and this has implications for
the counter-hegemonic potential of human rights. If developing states and their citizens feel
alien to the contemporary dominant human rights discourse, it is questionable that human
rights provide tools for them to address injustices and development problems, unless they
participate in reformulating the human rights concept.
The contemporary language of indivisibility reflects an acknowledgement of the fundamental
unity of human rights as enumerated in the UDHR. Indivisibility is seen as a remedy for the
breech caused by the forced separation that took place due to political disagreements,
stemming inter alia from hesitation to the idea of justiciable economic and social rights.533
Recent emphasis on human rights-based approaches to development suggests attempts to
bridge the gap between freedom and sustenance. Moreover, viewing of participation as a right
has politicised economic and social rights; the fulfilment of these rights are no longer seen as
a ‘welfarist’ concern with provision of services to passive ‘beneficiaries’.534 The position that
there is no ‘hierarchy’ of rights can, however, appear unhelpful for those seeking to identify
priorities for action and change, e.g. in human rights-based development work. Therefore, it is
important to understand how rights regimes operate as they relate to the capacity of poor
people to access opportunities in order to identify and prioritise strategic entry points for
action.535
530
Whelan, Indivisible Human Rights, supra note 525, at 6-7.
531
Ibid., at 62.
532
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 42.
533
Whelan, Indivisible Human Rights, supra note 525, at 208.
534
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 43-44.
535
Moser and Norton, To Claim Our Rights, supra note 46, at 14.
78
In an actor-oriented perspective on rights, there would be an open question about how people
articulate rights claims in specific situations, instead of asking which types of rights are
important and how they reinforce or weaken each other. An open question that does not
assume anything about a hierarchy of rights “is more likely to bring the complex overlap
between demands for rights as ‘things’ and demands for the power to make decisions
concerning the ‘things’ (participation).”536
Another important issue is that the two traditional categories of rights, civil, political and
economic, and social and cultural, are not enough to cover rights claims in a rapidly changing
world. Demands from rights-holders reject the compartmentalisation of rights and continue to
expand the rubric of rights into new areas such as knowledge rights. An actor-oriented
perspective seeks to investigate struggles over rights in the everyday experiences as mediated
by factors such as gender, ethnicity, caste and kinship structures,537 while being open to issues
and demands that do not easily fit into the current legal human rights structure.
Being aware of the tensions and shortcomings of the legal human rights structure is important
in order to be able to use that framework when formulating human rights claims. An actor-
oriented perspective allows for creative use of the human rights framework, not being too
limited in instances where the human rights framework clearly contradicts lived reality. The
artificial division of human rights is an obvious example.
2.2.11 Concluding remarks
In constructivist research there is an in-built assumption that people have agency and are
therefore capable of transformative actions that delegitimise, destroy, and rebuild structures.
Dominant definitions of human rights are not immune to such delegitimisation and
reconstruction. There is no opposition between an actor perspective and a structural
perspective of human rights. Structure puts limits on actions and agency but actions do change
structure.
For many, human rights remain an excluding and elitist discourse with little relevance to the
everyday lived reality. Yet, human rights represent a powerful idea. Human rights discourse
needs to be expanded and made available so that a public political dialogue can take place at
all levels of society rather than being protected and kept as expert knowledge. Human rights-
based approaches to development can at best help in advancing this kind of localisation and
politicisation process of human rights.
In this chapter I have argued for an inclusive and open way of approaching and understanding
the human rights concept. Human rights are legal and political; universal and
particular/contextual; have both individual and collective dimensions and include claims that
can be situated in different categories of rights. Human rights discourse is a discourse of unity
(putting emphasis on our shared humanity), however, this discourse should not replace a
discourse of division but rather be placed alongside it, another example of both/and instead of
either/or thinking. We need to understand what unites human beings as well as what divides
them in order to build an adequate basis for social and political practice.538
Human rights discourse is a complex and contradictory discourse, especially in its legal
forms. Legal human rights claims can both serve to maintain the status quo and to challenge
and change it. Law as a discourse tends to have a “distinct ability to define and pronounce
536
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 46.
537
Ibid., at 45-46.
538
Ife, Human Rights and Social Work, supra note 3, at 201.
79
authoritatively on the world around it”, as noted by Kapur.539 The actor-oriented and from
below perspectives on human rights are aware of this one-size-fits-all-best practice tendency
that stifles from below visions. Political human rights claims are of course not free from
contradictions and tensions either. When introduced from above, as expert knowledge, human
rights are often introduced as somehow politically neutral legal solutions that will improve
‘governance’.
Central to the argument in Ife’s idea about human rights from below as well as in Nyamu-
Musembi’s actor-oriented perspective on human rights in development practice is the
importance of the actors themselves being able to contribute to giving meaning to human
rights. It is the process of ‘meaning-giving’ that is interesting in a human rights-based
approach to development (and this does not, of course, take in a vacuum, the structures of the
international human rights system are there to influence that process). If the actors are going
to have a sense of ownership, so that a ‘culture of human rights’ can be embedded, they must
have a say in the process. If participation is going to be meaningful, human rights cannot be
seen as a ‘professional’ (mostly legal) practice. The human rights concept must be understood
in a way that is organic to the specific realities of the actors claiming them. Additionally, the
strategies applied must be born out of an understanding of the relationships and identities that
shape this reality. In this way human rights can be relevant and meaningful to the lived
realities of people striving to improve the conditions of their lives. If we take the idea about
agency seriously, we must let actors themselves speak about human rights – we cannot have a
ready list of ‘things’ ‘they’ ought to desire. There must be trust in the wisdom and change
from below, seeing that there are opportunities and challenges for change in all cultures and
all situations. The task of people doing human rights-based development work is about
assisting the process so that poor people’s claims are being heard, seen and reflected.540 One
of the most fundamental dilemmas in professional assisting is that outsiders try to impose
their idea of ‘help’, or ‘change’. Too often top-down management hide behind nice slogans of
participation and empowerment, and often conflicts between these two principles are hidden
and ignored. It remains an unresolved question how to deal with situations in which
participants do not prioritise human rights realisation.
An actor-oriented approach does not imply that the UDHR, UN covenants of human rights
and national bills of rights have no value or are unimportant or that human rights
professionals’ skills have no value. These documents have legal significance and they have
symbolic power and can be tools to be used in advocacy, an important element of human
rights-based practice. However, they are not the final and last word on human rights. Even
though they enjoy some degree of universality, all the documents were made at particular
times and specific contexts. People should be able to look at them critically and think about
what human rights mean for them. Social movements have during all times challenged the
human rights system and contributed to its evolution and reformulation. However, as there is
a danger that actors ‘defining rights’ will make a list of local ‘demands’ explained in a rights
language, it is essential that there is the aspiration of universality involved in such an exercise.
People must think beyond narrow self-interest so that the human rights claims they have for
themselves are also what they wish could be applied to all of humanity.541 This is what
distinguishes human rights from other rights regimes.
539
Kapur, “Revisioning the Role of Law”, supra note 382, at 104. Kapur is referring to Carol Smart.
540
Moser and Norton, To Claim Our Rights, supra note 46.
541
Ife, Human Rights from Below, supra note 8, at 212-213.
80
2.3 Food rights, food security, and livelihoods
Having analysed the concepts ‘development’ and ‘human rights’ it is now time to turn to food
rights, food security and livelihoods. In this chapter, I will deal with the integration between
the right to adequate food and food security. In order to understand the context I will start by
exploring who the poor and hungry are. Then I will firstly review the integration and
disintegration between the right to food and food security historically, and secondly explore
the relationship between the two concepts, including how they have come together as a human
rights-based approach to food security. I will also review how the right to food has been given
content and meaning by expert institutions and how civil society actors strive to change and
redefine that content so that it would resonate with the lived reality of the poor and hungry.
2.3.1 Who are the poor and hungry?
Who is poor: A word on measuring poverty
Just as there are no universally accepted ways of defining development, there are no value-
neutral means of measuring development or the lack of it. Since the understanding of
development has been dominated by economic aspects, it has become common for countries
to establish a poverty line based on income or consumption. The World Bank has set up the
equivalent of US $1 in consumption per person per day as the line of absolute poverty, for
purposes of international comparison.542 According to this way of measuring, a poor person is
someone who has less than one dollar per day to live on. Despite obvious shortcoming, the
one dollar a day has been widely used as a proxy for poverty. For instance, the UN
Millennium Declaration set out the goal that the proportion of the world’s people whose
income is less than one dollar a day should be halved by the year 2015.543
The human development index (HDI) is a measurement of socio-economic progress that
reflects a broader understanding of development. The index uses a combination of criteria to
measure the quality of people’s lives. Three variables have been chosen: life expectancy,
educational attainment (adult literacy and combined primary, secondary and tertiary
enrolment), and real gross domestic product (GDP) per capita.544
The 1997 edition of the Human Development Report also introduced a human poverty index
(HPI), using variables such as the percentage of people expected to die before the age of forty,
the percentage of adults who are illiterate, the percentage who are lacking access to health
services and safe water.545
The latest invention is called the multidimensional poverty index (MPI) and is said to reveal a
different pattern of poverty than income poverty, as it reflects a different set of deprivations.
The MPI has three dimensions: health, education, and standard of living. These are measured
using ten indicators, inter alia child mortality, nutrition, years of schooling, child enrolment,
drinking water, sanitation, and assets.546 What is special about the MPI (compared to progress
reports on the Millennium Development Goals, for instance) is that the MPI establishes the
542
Jan Knippers Black, Development in Theory and Practice: Paradigms and Paradoxes (USA: Westview Press,
second edition 1999) 40-41. Today it is $1.25.
543
UN General Assembly Resolution 55/2, 18 September 2000, Art. 19.
544
Black, Development in Theory and Practice, supra note 542, at 42.
545
Ibid., 42.
546
Sabine Alkire and Maria Emma Santos, “Acute Multidimensional Poverty: A New Index for Developing
Countries”, UNDP Human Development Research Paper 2010/11, at 4. Available at http://hdr.undp.org/
en/reports/global/hdr2010/papers/HDRP_2010_11.pdf, visited 10 May 2012.
81
‘base’ population as being the household. The argument is that as people live in households,
the suffering of one member affects other members, and the abilities of one member to help
other household members. The MPI analysis therefore focuses on people rather than nations.
The MPI calculate the number of people whose lives are affected by multiple deprivations,
not the number of countries as is the case in the Global Monitoring Reports. This commitment
is argued to be part of a human rights-based approach and other ethical approaches, in which
every human life is to be given equal weight.547 People are in the centre, not economies.
However, one might note that focussing on households rather than individuals is alien to
conventional, individualistic human rights practice.
Who are the hungry?
The FAO calculates the number of hungry and undernourished people worldwide and
publishes the results annually in The State of Food Insecurity in the World reports. The latest
report tells us that, for the first time since 1970, more than one billion people and around one-
sixth of all of humanity are hungry. The FAO claims that even before the food and economic
crises, the number of undernourished people in the world had been increasing slowly and
steadily for a decade.548
Numbers are numbers and they might be useful to give us a hint about how prevalent poverty
and hunger are on a global scale. However, they do not tell us much about the question who
the poor and hungry people are. The UN Millennium Development Project Taskforce on
Hunger writes in the report Halving Hunger: It can be done that the hungry and the poor are
the vulnerable. Many of the households living below the poverty line are unable to obtain
enough food to feed the family members. Women and children are especially vulnerable to
hunger. Women produce 60-80 percent of the food in most developing countries and more
than 80 percent of the food in Africa – and yet they are disproportionately vulnerable to
hunger, due to existing social inequalities. They own only 1 percent of the land and receive
only 7 percent of agricultural extension time and resources.549 In addition, when a women
receives inadequate nutrition this has a tremendous effects on her children. Women may not
be able to produce breast milk of sufficient quantity and quality when they are
malnourished.550
Poor and hungry people do not live only in so called developing countries but also in rich
industrialised nations. Janet Poppendieck has studied emergency food and their users in the
USA. From her book Sweet charity? we learn that also in the wealthy USA the individuals
most at risk of hunger are women, children, and the elderly, many of them members of
minority groups. These groups asserted that the reasons they are hungry is because of
unemployment or underemployment, high costs of housing and other basic needs, and
inadequate welfare and food assistance benefits.551
Studies show that the majority of the world’s hungry people live in rural areas. The task force
on hunger estimate that about half of the hungry are smallholder farming households, as they
547
Alkire and Santos, “Acute Multidimensional Poverty”, supra note 546, at 5-6.
548
FAO, The State of Food Insecurity in the World 2009 (Rome: Food and Agriculture Organization of the
United Nations, 2009) at 4 and 8.
549
UN Millennium Development Project, Halving Hunger: It can be done (Taskforce on Hunger report, 2005),
at 5. Available at http://www.unmillenniumproject.org/documents/Hunger-lowres-complete.pdf, visited 4
December 2011.
550
Ibid, at 2.
551
Janet Poppendieck, Sweet Charity? Emergency Food and the End of Entitlement (USA: Penguin Books,
1998) at 50.
82
are unable to either grow or buy enough food to meet their daily needs. While accurate data is
difficult to find, the taskforce estimates that roughly two-tenths of the hungry are landless
rural people; one-tenth are pastoralists, fisher folk, and people who depend on forests for their
livelihoods; and two-tenths live in urban areas.552 Olivier De Schutter points out that in
Africa, 90 percent of agricultural production is from smallholder famers with less than two
hectares. They cultivate plots that are so small and of poor quality that they need to buy
food.553 Employment opportunities to obtain cash are, however, rare in poor rural areas.554
Modern development schemes have promoted a movement to input-intensive, monocultural
production for export, and small farmers often face fluctuating prices, increased costs, and
decreased government support,555 as we will see in the Malawi case-study in part II.
Most of the world’s hungry, or 90 percent, are chronically undernourished. Only a small part
of the hungry, or 10 percent, are those suffering from acute hunger that typically takes place
during famines and disasters. Then as a third category there are those suffering from hidden
hunger, caused by lack of essential micronutrients, even when they consume adequate
amounts of calories and protein. Victims of acute hunger usually attract more attention and
support than the chronic and hidden hunger.556 This study addresses efforts that try to support
those suffering from acute hunger through food assistance interventions as well and efforts
that try to address chronic and hidden hunger through improved services e.g. in the area of
agriculture.
2.3.2 The poor as experts on their own development
What is striking when reviewing the meaning behind the concept ‘development’ and ‘poverty’
is the absence of the voices of the poor themselves in defining development or the lack of it.
Traditionally, it has been those who regard themselves as the ‘social superiors’ to the poor
that have defined poverty and the poor. The nineteenth century called them the dangerous
classes, and these negative perceptions have not completely disappeared. The poor are often
viewed as equal to dirty, dumb, drugged, prone to violence and crime, and generally
irresponsible. Social reformers have protested against this kind of stigmatisation. They have
argued that the poor are themselves not to blame for their condition: the dangerous turned into
the unfortunate, or disadvantaged classes. Poor people should at least have a roof over their
head, clothes on their bodies, food on the table, and a job to go to. Moreover, in modern
times, the state has become the guardian of the poor, running welfare programmes with
specialised social workers in charge.557 This is the thinking also in human rights discourse.
In the Consultations with the Poor study, that set out to listen to and understand the voices of
approximately 20,000 people from 23 countries, the poor are seen as the experts on poverty.
The large majority of the poor people included in the Consultations said they are worse off
now, have fewer economic opportunities, and live in greater insecurity than in the past. They
do not feel that they have benefited from massive political and economic changes and
restructuring around the world. From a human rights perspective it is worrisome that poor
people’s experiences with government institutions are largely negative, even when
government programmes are rated as important. The poor find their own institutions to be the
552
Halving Hunger: It can be done, supra note 549, at 3-4.
553
Olivier De Schutter, “The Emerging Human Right to Land”, 12 International Community Law Review (2010)
303-334, at 304.
554
Halving Hunger: It can be done, supra note 549, at 4.
555
De Schutter, “The Emerging Human Right to Land”, supra note 553, at 304.
556
Halving Hunger: It can be done, supra note 549, at 2.
557
Friedman, Empowerment: The Politics of Alternative Development, supra note 263, at 55-56.
83
most dependable.558 One of the significant conclusions was that overwhelmingly the poor
want to be heard, and they want to participate in institutions, whether of government or civil
society. They want institutions to play a major role: they want that institutions do more and do
it well.559
Another issue that became clear was the importance of the psychological dimensions of
wellbeing and ill-being. It became clear that the good and the bad in life are multidimensional,
with the experiential and psychological dimensions at the centre.560 The experiences are
affected by a combination of material, physical, and social factors.561
What also emerged from the collective voices of the poor is their resilience and hard work.
Despite the stress of their children going hungry, the humiliation and shame experienced in
their interaction with government, traders, money lenders and landlords, the poor survive and
persist. Additionally the poor take initiatives. They create groups to patrol the community to
protect against theft; they establish saving groups; they create unions, cooperatives, temples,
mosques, and church associations. They have labour exchange groups, chicken raising groups
and burial groups.562 This shows that the poor have agency and find ways of coping with the
reality of their daily lives. We assume that because the majority of hungry farmers have not
managed to take back power from corporate interests, landlords or bureaucrats, nobody can.
Seldom do we seek to learn from the examples of peasant societies that have in fact overcome
hunger.563
This is contrary to our view of poor people as passive and incapable of assuming
responsibility for their own lives, and thereby needing to be cared for.564 Researchers often
operate with implicit or explicit assumptions that poor and oppressed people are ‘marginals’
or living ‘outside’ society. Paulo Freire claims they have always been ‘inside’ – inside the
structures which made them who they are. The solution is not to ‘integrate’ into the same
structures that oppress them but to transform these structures.565 The question is if strategies
based on human rights and the right to food can contribute to such social transformation.
2.3.3 Integration of food security and the right to food
From national food security to household food security
The concept of ‘food security’ became increasingly into focus in the 1970s as a response to
the world food crisis taking place early in the decade. In 1974, the FAO organised the World
Food Conference, which inter alia recommended the establishment of a Committee on World
Food Security under the FAO.566 The early 1970s saw the start of a new policy-oriented food
and nutrition debate. This was clearly due to the fact that: firstly, increased food production
did not guarantee a reduction in hunger; secondly, that many technological solutions proposed
558
Deepa Narayan et al. “Global Synthesis: Consultations with the Poor”, Poverty Group of the World Bank,
1999, at. 2. Available at http://siteresources.worldbank.org/INTPOVERTY/Resources/335642-1124115102975/
15551991124138742310/synthes.pdf, visited 3 March 2012.
559
Ibid., at 39.
560
Ibid., at 3-4.
561
Ibid., at 13.
562
Ibid., at 38-39.
563
Frances Moore Lappé and Joseph Collins, Food First: Beyond the Myth of Scarcity (USA: Institute for Food
and Development Policy, 1977) at 392.
564
Poppendieck, Sweet Charity?, supra note 551, at 318.
565
Freire, Pedagogy of the Oppressed, supra 364, at 55.
566
Ida-Eline Engh, Developing Capacity to Realise Socio-Economic Rights: The Right to Food in the Context of
HIV/AIDS in South Africa and Uganda (Antwerp: Intersentia, 2008) at 59.
84
had been based on insufficient analysis; and thirdly that a greater role and responsibility for
the state was essential for the prevention of hunger and long term food security. Then in 1976
the Covenant on Economic, Social and Cultural Rights, which had been adopted a decade
earlier, came into force. Some human rights experts and a few interested governments started
to elaborate on the notion of the relationship of human rights with economic and social
development.567
In the 1980s, there was increased focus on household food security as opposed to national
food security defined in terms of national grain reserves for stable grains at national levels.
Researchers tried to establish a concept taking into account the economics of the household,
its social and ecological environment as well as the prevailing food culture as the broad
framework to be used when determining food security conditions of households. Some of
these elements were to become the basis also for the normative understanding of the right to
adequate food. Today food security is generally examined at the household level in terms of
access to food, rather than in terms of food supply.568 However, Engh draws the conclusion
that focus on access to food is still lacking in parts of the food security debates and policy
discussions, so that there sometimes is a tendency to focus on availability of food at global,
national or regional levels rather than vulnerable individuals’ and groups’ access to food. For
the right to food, the starting point is always physical and economic access to food.569
The right to food as a concept has not been completely absent in debates on food security
concerns. In 1981 human rights experts and food/nutrition developmentalists came together at
a United Nations University seminar to think about how to bridge the gap between food and
nutrition concerns, as well as goals and the system of human rights norms. As a result of this
and other similar meetings development professionals working with food and nutrition
gradually started using a new terminology that was inspired by human rights thinking: the
hungry would no longer be seen as passive recipients of charity – they would become rights-
holders. As rights-holders they can in principle claim their right to food to be fulfilled, while
the state, as a signatory to the Covenant on Economic, Social and Cultural Rights, becomes
the corresponding duty-bearer with obligations to help fulfil the right to food along with other
rights.570 This implies that the idea to divide people and institutions (mainly state authorities)
into rights-holders and duty-bearers, when e.g. planning food security interventions, was
already shaped in the 1980s. (The gap between theory and practice is however big and the
actors involved in food related development interventions diverse. The language of rights and
duties is still largely absent in the policies of the World Food Programme, for instance.)
Moreover, a review of a textbook type of literature on human rights law reveals that the word
‘beneficiary’ is still applied also in human rights discourse,571 and it is only more recently that
the term right-holder is used by legal experts.572 This is one example of the mutual changes
and effects coming out of the process when two discourses meet.
567
Wenche Barth Eide, “The Promotion of a Human Rights Perspective on Food Security: Highlights of an
Evolving Process”, in Clay & Stokke (eds), Food Aid and Human Security (London: EADI, 2000) 326-350, at
330-331.
568
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 60-62. This is inspired by
the thinking of Amartya Sen.
569
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 74.
570
Eide, “The Promotion of a Human Rights Perspective on Food Security”, supra note 567, at 332.
571
See e.g. A. Eide, C. Krause & A Rosas (eds), Economic, Social and Cultural Rights: A Textbook (Dordrecht:
Martinus Nijhoff Publishers, Second Revised Edition, 2001); Scheinin, “Characteristics of Human Rights
Norms”, supra note 500, at 35.
572
See e.g. Declaration of Principles of Equality, The Equal Rights Trust, 2008. Available at
http://www.equalrightstrust.org/about-ert/index.htm, visited 14 May 2012.
85
We should keep in mind that the meaning of the right to food was far from clear during this
time. To many the idea of food as a right was unfamiliar and yet others had misconstrued the
notion of a right to food as the unconditional duty of the state to provide food to all
irrespective of its limited resources. There were various attempts to promote the right to food
as a human right at intergovernmental conferences in the early 1990’s. Although the World
Conference on Human Rights in 1993 contributed to a conducive environment, it was only
UNICEF among the UN agencies that by the mid 1990s had shown interest or a capacity to go
beyond rhetorical statements about food as a human right. It was also UNICEF that chaired
the Working Group on Nutrition, Ethics and Human Rights, that met for the first time in 1994,
functioning under the UN system. Reports and recommendations of the Working Group made
the UN agencies more familiar with the concept of a human rights approach to food and
nutrition policies and programmes. In 1999, there was a session of the ACC/Sub-Committee
for Nutrition in Geneva, hosted by the UN High Commissioner on Human Rights, and
preceded by a thematic symposium, which provided an opportunity for a deeper consideration
of the issues.573
At the first meeting between the human rights and development professionals in 1981 it was
agreed that a more precise definition of the right to food, as well as further operationalisation
of the corresponding duties or obligations for implementing this right was needed.574 It was
around the time of the World Food Summit in Rome in 1996 that the strong interest in food as
a human right became apparent.575 The World Food Summit and the subsequent Plan for
Action included a specific call for a better definition of the right to food and the steps to
realise it.576 Considerable effort has been put into this task. In 1999, the Committee on
Economic, Social and Cultural Rights clarified the normative content of the right to food in
General Comment No. 12.577 The next year the Human Rights Commission appointed a
Special Rapportuer on the Right to Food.578 In the Declaration adopted at the World Food
Summit: five years later in 2002 the FAO Council was called to establish an
Intergovernmental Working Group “to elaborate, in a period of two years, a set of voluntary
guidelines to support Member States' efforts to achieve the progressive realisation of the right
to adequate food in the context of national food security;”579 These so called Right to Food
Guidelines were adopted in 2004.580 The Guidelines can be seen as a first attempt to ‘marry’
food security and the right to food,581 and will be reviewed below.
This short historic overview reveals that the debates around food security and the right to food
have had strong influence on each other. The cooperation between engaged professionals
from both discourses existed, in the margins, long before human rights-based approaches
became a trend. From the margins it was in the 1980s that the ‘food security ship’ and the
573
Eide, “The Promotion of a Human Rights Perspective on Food Security”, supra note 567, at 334-336.
574
Ibid., at 332.
575
Kerstin Mechlem, “The Development of Voluntary Guidelines for the Right to Adequate Food”, in Mahiou
and Snyder (eds), Food Security and Food Safety (Leiden: Martinus Nijhoff Publishers, 2006) 351-390, at 359.
576
Rome Declaration on World Food Security and World Food Summit Plan of Action, Commitment 7,
Objective 4, adopted in Rome 13 November 1996. Available at http://www.fao.org/docrep/003/w3613e/
w3613e00.htm, visited 14 May 2012.
577
General Comment No. 12, (1999) on the right to adequate food, Committee on Economic, Social and Cultural
Rights, Report on the Twentieth session, UN doc. E/C.12/1999/5.
578
Commission on Human Rights Resolution 2000/10 (17 April 2000).
579
FAO, Report of the 123rd Session of the FAO Council, Rome, 28 October – 1 November 2002. Emphasis in
original.
580
Adopted by the 127th Session of the FAO Council, November 2004.
581
See Mechlem, “The Development of Voluntary Guidelines”, supra note 575, at 351-390.
86
‘right to food ship’ started approaching each other and the conceptual ground work for a
human rights-based approach to food was laid.
The relationship between the right to food and food security
Human rights covenants and development policy share the same aim in relation to food, i.e.,
that all people have access to sufficient food. Both are concerned with fulfilling people’s
basic needs for food and nourishment.582 In human rights language this aim is put in the
following manner: “The right to adequate food is realized when every man, woman and child,
alone or in community with others, has physical and economic access at all times to adequate
food or means for its procurement.”583 Almost the same wording is used to define food
security in the World Food Summit Plan of Action,584 a document that was adopted three
years before General Comment No. 12 appeared.
Kerstin Mechlem has covered the relationship between the right to food and food security
quite exhaustively and I will therefore only highlight some basic facts. She firstly points out
that the overall objective of food security policies is achieving food security while right-to-
food aims at realising the right to food.585 The way ‘realization of the right to food’ is defined
by the Committee on Economic, Social and Cultural Rights is almost the same way as food
security is defined. Moreover, food availability, accessibility, safety, cultural acceptability are
issues of concern for both food security and the right to food. The justification of the objective
to realise the right to food/achieve food security is however somewhat different, according to
Mechlem. She states that there are a number of justifications as the ground for the aim of food
security, ranging from moral grounds to more economic approaches. Human rights are, on the
other hand, based on the idea of human dignity, and all other considerations must be
secondary in nature. Mechlem also sees a difference in the nature of the objectives. Food
security is a policy concept, and as such food security is subject to easy redefinition. The right
to food, on the other hand is a well-recognised element of international law, with a binding
normative content, so aiming for realisation of the right to food means implementing a legal
obligation. The right to food can therefore also be violated and such violations can be subject
of judicial or quasi-judicial remedies.586 A rights-based approach to food security views
governments’ commitments in this area as an obligation, not a form of benevolence.587
I partly disagree that the right to food as part of international human rights law would have a
more stable meaning than food security as a policy concept. When the right to food is seen to
be discursively constructed its content and meaning too is subject to changes taking place
over time.
I share Mechlem’s view that the concepts of food security and the right to food relate closely
to each other, although there can be situations when there is food security on the national level
and the right to food of the individual can still be violated, because of discriminatory means.
582
Kerstin Mechlem, “Food Security and the Right to Food in the Discourse of the United Nations”, 10
European Law Journal (2004) 631-648, at 643.
583
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
584
“Food security exists when all people, at all times, have physical and economic access to sufficient, safe and
nutritious food to meet their dietary needs and food preferences for an active and healthy life.” Rome
Declaration on World Food Security and World Food Summit Plan of Action, para 1, adopted in Rome 13
November 1996. Available at http://www.fao.org/docrep/003/w3613e/w3613e00.htm, visited 14 May 2012.
585
Mechlem, “Food Security and the Right to Food”, supra note 582, at 643.
586
Ibid., at 643-644.
587
Food and Agriculture Organization of the United Nations, “The Right to Food in Practice: Implementation at
the National Level”, Rome: FAO, 2006, at 3. Available at http://www.fao.org/righttofood/KC/downloads/vl/
docs/AH189_en.pdf, visited 10 May 2012.
87
This again implies that focus on method is crucial. “Progressively realizing the right to food
should imply using a rights-based approach to food security that has distinct
characteristics.”588 However, what a rights-based approach to food security means is open to
interpretation, as will be shown in the following.
A human rights-based approach to food security as suggested in the Right to Food Guidelines
This section tries to answer the question what are the distinct characteristics of a human
rights-based approach to food security? The answer to this question can be found in a
comparison of the General Comment on the Right to Adequate Food and the Voluntary
Guidelines to support the progressive realisation of the right to adequate food in the context of
national food security (the ‘Right to Food Guidelines’), which are said to be a human rights-
based practical tool.
One could imagine that the specific steps to be taken and the method to be applied are
described in the Right to Food Guidelines to support the progressive realisation of the right to
adequate food in the context of national food security. Furthermore, the Right to Food
Guidelines are said to be “a human rights-based practical tool addressed to all States.” States
are encouraged to apply the Guidelines in developing their strategies, policies, programmes
and activities.589 (The fact that States are the target in the Guidelines does not make them
irrelevant for agencies and organisations as they should support the capacity of the State as
the main duty-bearer, and the capacity of the rights-holders, to realise the right to food.) A
critical note is that the strong focus on national food security leaves the international level
outside the scope of the Guidelines. When focus is on the actions which states can take to
overcome hunger, the Right to Food Guidelines renders the effects of the international
economic system largely invisible, which is a structural factor that can constrain the ability of
states to guarantee food needs of their population.590 This is, however, not the subject of this
particular analysis. I will instead focus on what kind of a human rights-based strategy is
proposed in the Right to Food Guidelines and compare this with the General Comment on the
Right to Adequate Food.
According to General Comment 12, there should be a national strategy to ensure food and
nutrition security for all, based on human rights principles,591 (which are not defined).
National strategies are also dealt with in the Right to Food Guidelines. The General Comment
and Guidelines both point out that before formulating a national strategy, there needs to be
careful assessment of existing national legislation, current programmes, and identification of
constraints and availability of existing resources.592 The strategy should identify policy
measures and activities that are relevant to the situation and context.593
Impact assessment is an essential part of the Guidelines, and states are encouraged to conduct
‘Right to Food Impact Assessments’ in order to identify the impact of domestic policies,
588
Mechlem, “Food Security and the Right to Food”, supra note 582, at 644-645. Engh, Developing Capacity to
Realise Socio-Economic Rights, supra note 566, at 74. Engh says that “the right to food is not synonymous with
food security, but they are closely related. If food security is realized, the conditions will be suitable for the right
to food to be enjoyed.”
589
Voluntary Guidelines, Preface, at 2. Adopted by the 127th Session of the FAO Council
November 2004.
590
Jacqueline Mowbray, “The Right to Food and the International Economic System: An Assessment of the
Rights-Based Approach to the Problem of World Hunger”, 20 Leiden Journal of International Law (2007) 545-
569, at 559.
591
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 21.
592
Voluntary Guidelines, supra note 589, Guideline 3.2.
593
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 22.
88
programmes and projects on the progressive realisation of the right to adequate food.594 With
regard to assessing the food security situation in the country, the Guidelines highlights the
importance of undertaking a “disaggregated analysis on the food insecurity, vulnerability and
nutritional status of different groups in society”.595 Here the Guidelines go further in linking
assessment of food insecurity with the principle of non-discrimination and the key role
disaggregated data plays in an analysis of which groups in society suffer from possible
discrimination in the area of the right to food. Otherwise, the Guidelines more or less repeat
what the General Comment says in terms of that national strategies should address all aspects
of the food system, including the production, processing, distribution, marketing, and
consumption of safe food. The new dimension is that a national strategy for the progressive
realisation of the right to food is linked to poverty reduction strategies, and in this context
States should “give priority to providing basic services to the poorest, and investing in human
resources by ensuring access to primary education for all, basic health care”, etc.596
The Guidelines are clear in pointing out that they do not establish legally binding obligations
for States or international organisations, and that the provisions in the Guidelines do not
modify rights and obligations under international law.597 However, because the claimed added
value of a human rights approach to food security lies in the emphasis of addressing food
insecurity as a matter of obligation, not benevolence, it is important to clarify what exactly is
expected of states under the right to food as formulated in the International Covenant on
Economic, Social and Cultural Rights (ICESCR). According to General Comment 12, the
principal obligation under the right to adequate food is “to take steps to achieve progressively
the full realization of the right to adequate food.”598 Similar to any other human right, this
imposes three levels of obligations on States parties: the obligation to respect, to protect, and
to fulfil.
The obligation to respect existing access to adequate food requires States parties
not to take any measures that result in preventing such access. The obligation to
protect requires measures by the State to ensure that enterprises or individuals do
not deprive individuals of their access to adequate food. The obligation to fulfil
(facilitate) means the State must pro-actively engage in activities intended to
strengthen people's access to and utilization of resources and means to ensure their
livelihood, including food security. Finally, whenever an individual or group is
unable, for reasons beyond their control, to enjoy the right to adequate food by the
means at their disposal, States have the obligation to fulfil (provide) that right
directly. This obligation also applies for persons who are victims of natural or
other disasters.599
This language of respect, protect, and fulfil is not fully integrated into the Right to Food
Guidelines. In the Introduction it is noted that States have an obligation to “respect, promote
and protect and to take appropriate steps to achieve progressively the full realization of the
right to adequate food.”600 When referring to the respect and protect dimension, the
Guidelines repeat the General Comment. In explaining what the promote dimension means,
the Guidelines use the same wording as the Committee on Economic, Social and Cultural
594
Voluntary Guidelines, supra note 589, Guideline 17.2.
595
Voluntary Guidelines, supra note 589, Guideline 13.2.
596
Ibid., Guideline 3.6.
597
Ibid., para. 9.
598
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 14.
599
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15. Emphasis in
original.
600
Voluntary Guidelines, supra note 589, para. 17. Emphasis added.
89
Rights use for the facilitation-dimension. (States are to promote policies intended to
contribute to the progressive realisation of people’s right to adequate food by strengthening
access and utilization of resources and means to ensure a livelihood.) Finally, without using
the word fulfil/provide, the Guidelines explains that states should maintain safety nets or other
assistance for those who are unable to provide for themselves, to the extent resources
permit.601
This is a little confusing as the Guidelines are designed to clarify and help states in
developing strategies, policies, and programmes which are rights-based, i.e. based on legal
obligations. A human rights approach to food security is supposed to facilitate the
implementation of the right to adequate food,602 but the Guidelines are perhaps not
sufficiently clear in defining and giving concrete meaning to this approach. Failing to clarify
the essential fulfil/provide dimension of the tripartite obligations can be confusing to states
that want to establish and maintain safety nets or other assistance for individuals who are
unable to provide for themselves as part of their right to food strategies. The rights-holders
must be able to claim their right from a duty-bearer, otherwise it is unclear what value the
human rights-based approach to food security adds to already existing food security policies.
However the Guidelines seldom link the right to food to an obligation, and does not use
concepts of ‘rights-holders’ and ‘duty-bearers’, concepts that were introduced into the food
security debates already in the 1980s. Instead, the Guidelines are full of rather vague
statements about striving for ‘conducive policies’, through a non-discriminatory and market-
oriented trade system.603 It remains unclear what exactly is the role of duty-bearer institutions,
rights-holders, and different stakeholders such as donor states and international agencies.
The Guidelines are, furthermore, not helpful in clarifying the roles and responsibilities in
times of emergencies. As we have seen in the General Comment, the State has the fulfil-
obligation to provide the right to food directly to victims of natural or other disaster. This duty
is dealt with in Guideline 14, under “Safety nets”. To the extent that resources permit, the
State “should consider” maintaining social safety and food safety nets to protect those who
are unable to provide for themselves. Local procurement of items for food assistance is
encouraged, and the food should be nutritionally adequate and safe, bearing in mind local
circumstances and dietary traditions, and should target those most in need of assistance,
respecting the principle of non-discrimination.604
General Comment 12 encourages similar approaches to food aid under the heading
“international obligations”.605 International food aid is dealt with in Guideline 15, which is
targeting donor states: “Donor States should ensure that their food aid policies support
national efforts by recipient States to achieve food security.” The stages of the food aid
process should, “as far as possible be made in a participatory manner and, whenever possible,
in close collaboration with recipient governments at the national and local level.”606
The Guidelines deal with national safety nets and international food aid as two distinct
domains, and the latter is accepted as being in the hands of donor states, whereas the General
Comment gives the provide-responsibility to the national State, encouraging it to seek
601
Voluntary Guidelines, supra note 589, para. 17.
602
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 74.
603
Voluntary Guidelines, supra note 589, Guideline 5, para 4.7.
604
Voluntary Guidelines, supra note 589, Guidelines 14.1, 14.2, 14.5.
605
General Comment No. 12, (1999) on the right to adequate food, supra note 577, paras. 36-41.
606
Voluntary Guidelines, supra note 589, Guidelines 15.1 and 15.5.
90
international assistance when resources are too few to fulfil its minimum obligations.607
Donor policies are dealt with separately under “international obligations” where it is stated
that “States parties should take steps to respect the enjoyment of the right to food in other
countries, to protect that right, to facilitate access to food and to provide the necessary aid
when required.”608
Donor accountability for actions and policies that hamper the right to food in developing
countries is not an issue that is raised in the Right to Food Guidelines. This is an example that
there are many aspects to food security and that the international level cannot be left outside a
comprehensive human rights-based approach to food security. Inadequate food supply is often
a result of complex, structural problems, outside the control of particular states and authorities
on the national level.609 However, the purpose of the above analysis was not to determine how
effective a human rights-based approach is in tackling world hunger but instead to simply
present the ‘distinct characteristics’ of such an approach as it has been laid out in the Right to
Food Guidelines. As we have seen, it is far from clear what these ‘distinct characteristics’
mean and analysing the Guidelines side by side with General Common 12 indicates that
neither document is helpful in giving clear answers.
The Right to Food Guidelines are supposed to be a resource when states want to make their
own national rights-based food security policies at the national level, and therefore it is
natural that it leaves room for a margin of discretion for states to choose their own approaches
and ways of implementing the right to adequate food. Ironically, the Guidelines are quite
detailed in the substantive parts, e.g. in highlighting what states should do to “improve the
functioning of their markets”,610 indicating that there is not much room for discretion in the
area of economic policies – the current market economical system is taken as a given – while
being more vague when it comes to the obligation to respect, protect, and fulfil the right to
food. It is especially the fulfil-dimension that differs from the interpretation given by the
Committee on Economic, Social and Cultural Rights in General Comment 12. These
obligations are mentioned only in the introduction and not in the actual Guidelines, indicating
their marginal position.
In the area of impact assessment and monitoring of the right to food the Right to Food
Guidelines, followed by FAO publications on the same subject, have clarified many issues
that are only mentioned briefly in the General Comment on the Right to Adequate Food. In
other areas it has been less helpful. The ‘key principles’ put forth in the Guidelines are vague
slogans instead of useful guiding principles to inspire the process of development and human
rights realisation. The fact that the Right to Food Guidelines do not claim to support the
capacity of the duty-bearer to fulfil its obligations under the right to food and the capacity of
the rights-holders to claim this same right, probably has many reasons, some of which have to
do with political disagreements in the intergovernmental working group during the drafting
process. The subject of rights and obligations under an economic and social right is still
contested.
607
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 17: “A State claiming
that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that
this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and
accessibility of the necessary food.”
608
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para, 36.
609
Mowbray, “The Right to Food and the International Economic System”, supra note 590, at 546.
610
Voluntary Guidelines, supra note 589, Guideline 4.
91
2.3.4 The right to food defined internationally, regionally and nationally
Background
As we know, economic, social, and cultural rights were included in the Universal Declaration
of Human Rights adopted in 1948. So called subsistence rights – adequate food and nutrition
rights, clothing, housing and necessary conditions of care – are part of the right to an adequate
standard of living in UDHR Article 25. Asbjørn Eide argues that in order to enjoy these social
rights, there is a need to enjoy certain economic rights such as the right to property (UDHR,
Art. 17), the right to work (UDHR, Art 23) and the right to social security (UDHR, Art. 22
and 25).611
UDHR was, according to Eide, initially an expression of ideals to be achieved, imposing
above all a moral obligation on states. Gradually these ideas have been transformed into ‘hard
law’ (‘positive law’). At the international level this process started with the adoption of two
Covenants in 1966, and later on we have seen numerous more specific conventions. This
created international legal obligations for states, from which followed also the task to ensure
that the rights were incorporated into national law and administrative practice.612
In the early stages of defining the right to food in international human rights law, there were
debates about the nature of this right as an economic, social, and cultural right. Mutua points
out that socialism and Latin American and Caribbean states influenced the ICESCR, and
many other states, particularly in the West, interpreted its focus on socioeconomic justice as a
threat to ‘free market values’.613 It was also argued that the right to food is not an individual
right but rather a ‘programme right’ to be put into governmental policies in the economic and
social fields. Deviations from the “cultural individualism in the West”, can be traced back to
states in the global South and can be attributed to the influence of the newly independent
states in the UN standard setting from the 1950s onwards.614 However, these arguments have
been met by expert-led UN institutions based in New York and Geneva with
counterarguments that underline the individual nature of all human rights. A UN publication
“Right to adequate food as a human right”, from 1989, argued that because Article 11 of
ICESCR proclaims the right to food as “the right of everyone” this formulation implies that it
is a human right belonging to individuals, not a “broad collective proposition”.615 This is an
example of the kind of either/or thinking that has been characteristic of human rights
discourse.
A related debate, that in part is still on-going, was related to the objection that socioeconomic
rights are not legally enforceable. It was therefore argued that implementation of Article 11 is
a political matter – not a matter of law.616 Those in favour of ESCR as legally enforceable
rights on an equal footing with civil and political rights have met this with counterarguments
such as “the problem relating to the legal nature of social and economic rights does not relate
to their validity but rather to their applicability.”617 A group of “authoritative experts” coming
611
Asbjørn Eide, “Human Rights Requirements to Social and Economic Development”, 21 Food Policy (1996)
23-29, at 29.
612
Ibid., at 30-31.
613
Mutua, “Standard Setting in Human Rights”, supra note 296, at 576.
614
Ibid., at 576.
615
Centre for Human Rights, Study Series 1: Right to Adequate Food as a Human Right (New York: United
Nations, 1989), para. 42.
616
Ibid., para. 43.
617
Martin Scheinin, “Economic and Social Rights as Legal Rights”, in A. Eide, C. Krause & A. Rosas (eds),
Economic, Social and Cultural Rights: A Textbook, Second Revised Edition (Dordrecht: Martinus Nijhoff
Publishers, 2001) 29-54, at 29.
92
together to formulate the Limburg Principles of 1987, concerning the interpretation and
implementation of the ICESCR, held that “although the full realization of the rights
recognized in the Covenant is to be attained progressively, the application of some rights can
be made justiciable immediately while other rights can become justiciable over time.”618 In
other words, experts have rejected the political element of the right to food and argued in
favour of an individual, legally enforceable right. Again, tensions between the West and the
rest in giving meaning to human rights are visible.
As we have seen, the right to adequate food has been defined in instruments of international
human rights law, thereby setting a standard for national implementation of this right. Article
11 of the ICESCR protects in paragraph 1 “the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing and housing” and in
paragraph 2 it continues by “recognizing the fundamental right of everyone to be free from
hunger”.619
In the process of giving more concrete content and meaning to Article 11, the Committee on
Economic, Social and Cultural Rights (hereafter ‘Committee’) has played an important role.
The Committee is a body of independent experts that monitors the implementation of the
ICESCR.620 In 2008 the UN General Assembly adopted an Optional Protocol to the
ICESCR621 and it was opened for signature in 2009. Through the Optional Protocol the
Committee can begin to review individual complaints in a similar way to that of a court. Since
this has procedure has not yet started to function, it is so far mainly through so called general
comments and the reporting system that the Committee has given meaning and content to the
right to food. According to Craven general comments have, so far, been the main tool for
‘normative development’.622 Before the adoption of General Comment on the Right to
Adequate Food in 1999 the meaning of the right to food was not very clear.
The normative content
In General Comment No. 12, on the right to adequate food, the Committee on ESCR states
that this right shall “not be interpreted in a narrow or restrictive sense which equates it with a
minimum package of calories, proteins and other specific nutrients”.623 How “adequacy” is
defined is determined by prevailing social, economic, cultural, climatic, ecological and other
conditions in the society concerned.624 The “core content” of this right implies, according to
the Committee, “the availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals, free from adverse substances, and acceptable within a given
culture”.625 Availability has been defined as “possibilities either for feeding oneself directly
from productive land or other natural resources, or for well functioning distribution,
618
Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural
rights, 1987, Principle No. 8. UN doc. E/CN.4/187/17.
619
Adopted on 16 December 1966, entered into force on 3 January 1976, 993 UNTS 3. Regardless of the fact
that Article 11 of ICESCR makes a distinction between the “right to adequate food” and the “fundamental right
of everyone to be free from hunger”, the concept of “the right to food” covers both of these aspects. See Philip
Alston, “International Law and the Right to Food”, in A. Eide, W.B. Eide, S. Goonatilake, J. Gussow &
Omawale (eds), Food as a Human Right (Tokyo: The United Nations University, 1984) 162-174, at 167.
620
On the Committee, see Matthew Craven, “The Committee on Economic, Social and Cultural Rights”, in A.
Eide, C. Krause & A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook, Second Revised Edition
(Dordrecht: Martinus Nijhoff Publishers, 2001) 455-472, at 460.
621
GA resolution A/RES/63/117 (2008).
622
Craven, “The Committee on Economic, Social and Cultural Rights”, supra note 620, at 468.
623
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
624
Ibid., para. 7.
625
Ibid., para. 8.
93
processing and market systems that can move food from the site of production to where it is
needed in accordance with demand.”626
In order for the right to adequate food to be realised everybody should have physical and
economic access at all times to adequate food or means for its procurement.627 “Accessibility”
has been divided into economic and physical accessibility. The first concept implies that
“personal or household financial costs associated with the acquisition of food for an adequate
diet should be at a level such that the attainment and satisfaction of other basic needs are not
threatened or compromised.” Physical accessibility refers to the importance of adequate food
being accessible to everyone, “including physically vulnerable individuals, such as infants and
young children, elderly people, the physically disabled, the terminally ill and persons with
persistent medical problems, including the mentally ill.” Certain groups, such as victims of
natural disasters, people living in disaster-prone areas and other specially disadvantaged
groups, e.g. indigenous populations, “may need special attention and sometimes priority
consideration with respect to accessibility of food.”628
In Article 11(2), on the right to be free from hunger, three objectives are specially outlined,
namely, to improve methods of production, conservation, and distribution of food. To achieve
these objectives states should take necessary measures and programmes. In addition, reference
is made to technical and scientific knowledge and the development or reform of agrarian
systems. As the right to be free from hunger acts as a “sub-norm”629 to the right to food, it can
be assumed that the specific measures are intended to the right to food in general, not merely
to the right to be free from hunger.630
According to Craven, the purpose of agrarian reform631 in the context of the right to food is
not always clear. Nevertheless, as Craven points out, indirectly inequities in land distribution
contribute to poverty and thus also to inadequate access to food. However, it is clear that the
inclusion of a reference to developing and reforming of the agrarian systems does not mean
that states which do not initiate agrarian reforms would automatically be violating the
Covenant.632 The most effective way to implement the right to food varies depending on the
situation and context.633
Even though the Committee has not clarified the necessity of an agrarian reform in the general
comment on the right to food it has not disregarded this aspect of Article 11(2). Indirectly the
Committee, on several occasions, makes reference to rural development, for example when it
626
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 12.
627
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
628
Ibid., para. 13.
629
Amartya Sen has argued that the right to be free from hunger is a “metaright”. Such a “metaright” can be
defined as “the right to have policies p(x) that genuinely pursues the objective of making the right to x
realisable.” For example, in many countries where hunger is widespread, it might not be feasible to guarantee the
right to be free from hunger for everybody in the near future, but policies that would rapidly realise freedom
from hunger, do exist. See Amartya Sen, “The right not to be hungry”, in P. Alston and K. Tomasevski (eds),
The Right to Food (Netherlands Institute of Human Rights and Martinus Nijhoff Publishers, 1984) 69-81, at 70-
71.
630
Matthew Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford: Clarendon
Press, 1995) at 316-317.
631
The terms ”land reform” and ”agrarian reform” should not be used as synonyms even though they have much
in common. The former term refers to a redistribution of land ownership to achieve a more equitable access to
resources while an agrarian reform also includes supporting measures designed to make the reformed sector
more productive. See Cristina Liamzon, “Agrarian reform: A continuing imperative or an anachronism?”, in
Deborah Eade (ed.), Development and Rights (Oxford: Oxfam GB, 1998) 101-113, at 103.
632
Craven, The International Covenant on Economic, Social and Cultural Rights, supra note 630, at 322.
633
See General Comment No. 12, (1999) on the right to adequate food, supra note 577, paras. 21-22.
94
makes clear that the obligation to fulfil the right to food means that the state must take active
measures to strengthen access to and utilisation of resources and means to ensure
livelihoods.634 In addition, in the guidelines regarding the form and content of reports to be
submitted by States Parties under Articles 16 and 17 of the Covenant, it asks the State Party to
describe legislative measures in the context of an agrarian reform taken to ensure an equitable
distribution of food supplies.635 In its concluding observations on State Party reports the
Committee encourages agrarian reforms in cases where there is a high degree of concentration
of land ownership.636
The UN Special Rapporteur on the right to food, has, in the capacity of an independent expert
also played a significant role in giving meaning and content to the right to food. In 2002,
Special Rapporteur Jean Ziegler made clear that access to land and agrarian reform must form
a key part of the right to food. The rapporteur pointed out that hunger is predominately a rural
problem and that rural poverty is often closely linked to extreme inequity in access to land.
Moreover, as it is increasingly understood that small farms are more efficient than large
ones,637 the rapporteur stated that the notion of “developing or reforming agrarian systems in
such a way as to achieve the most efficient development and utilization of natural resources”,
used in Article 11(2)(a), can be understood as promoting agrarian reform to encourage small-
scale farming.638 The current Special Rapporteur, Olivier De Schutter, has continued along the
same lines, stating that investments should be directed at promoting sustainable forms of
agricultural production, benefiting small-holders who are most in need of support. He notes
that the global food crisis with the surge in food prices in 2006-2008 was “the result of
policies that have systematically undermined the agricultural sector in a number of developing
countries over a period of 30 years.”639 In his report from 2008, he called for structural
measures, leading to a profound reform of the global food system.640 This shows that experts
mandated by the UN have not defined the right to food in narrow terms solely as an
individual, legally enforceable entitlement. They have not avoided putting the right to
adequate food into a political and economic context, calling for structural reforms.
The right to food is not only guaranteed in the ICESCR. In the Convention on the Right of the
Child, two articles address the issue of nutrition. In Article 24(1) “States Parties recognize the
right of the child to the enjoyment of the highest attainable standard of health” and shall take
appropriate measures “[t]o combat disease and malnutrition, including within the framework
634
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
635
Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under
Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, Report of the
Committee on Economic, Social and Cultural Rights, 88-100. UN doc. E/1991/23.
636
Committee on Economic, Social and Cultural Rights, Concluding Observations on Paraguay (1996), UN doc.
E/C.12/1/Add.1, para. 9; Concluding Observations on Guatemala (1996) UN doc. E/C.12/1/Add.3, paras. 10 and
24; Concluding Observations on Peru (1997), UN doc. E/C.12/1/Add.14, para. 12; Concluding Observations on
Brazil (2003), UN doc. E/C.12/1/Add.87, paras. 31, 40 and 61. In these concluding observations the Committee
makes reference to the situation of indigenous peoples, landless peasants or in general the rural population. In its
concluding observations on the report of the Philippines, the Committee notes that the government has failed to
meet its own targets in relation to the implementation of an agrarian reform. Also, the Committee states that:
“The inadequacy of the agrarian reform programme appears to have had a negative impact upon the full
realization of the right to food as enshrined in Article 11 of the Covenant”. Concluding Observation on the
Philippines (1995) UN doc. E/C.12/1995/7, para 19.
637
Food and Agriculture Organization of the United Nations, The State of Food Insecurity in the World 2003,
(FAO: Rome, 2003) at 6.
638
Jean Ziegler, “The right to food”, report of Special Rapporteur of the Commission on Human Rights on the
right to food to the General Assembly, Fifty-seventh session, 2002, paras. 22-24 and 30. UN doc. A/57/356.
639
Report of the Special Rapporteur on the right to food, Olivier De Schutter, “Building Resilience: A Human
Rights Framework for World Food and Nutrition Security”, paras 7 and 8. UN doc. A/HRC/9/23 (2008)
640
Ibid., para.6.
95
of primary health care, through […] the provision of adequate nutritious foods and clean
drinking-water;”641 In Article 27(3) it is stated that States Parties “shall take appropriate
measures to assist parents and others responsible for the child to implement this right and
shall in case of need provide material assistance and support programmes, particularly with
regard to nutrition, clothing and housing.” The Convention on the Elimination on All Forms
of Discrimination against Women guarantees “adequate nutrition during pregnancy and
lactation” in Article 12(2).642 The way the committees monitoring these conventions have
contributed to giving meaning to these nutrition-related rights is outside the scope of this
chapter.
Both civil and political rights, economic, social and cultural rights, and collective rights are
included in the African Charter on Human and Peoples’ Rights. There is no categorisation of
the three sets of rights; the Charter is, in other words, of an integrated nature.643 Unlike the
ICESCR, the African Charter does not use the concept of “progressive realisation” in relation
to economic, social and cultural rights. Only in Article 16, which guarantees the best
attainable state of physical and mental health, can the language of “progressive realisation”
be found. In the other provisions the rights are set forth in a manner providing States Parties
with obligations which are of immediate application.644
As all rights enshrined in the Africa Charter are placed on an equal footing, the African
Commission on Human Rights has, in exercising its monitoring functions,645 the ability to
adopt a ‘violations approach’ in cases where a State Party has failed to fulfil its obligations
with respect to economic, social and cultural rights.646 This approach would have been
impossible if the Charter had incorporated the same ‘progressive realisation approach’ that
usually is the case regarding economic, social and cultural rights. In a violations case-based
approach, determinations can be made with respect to real-life situations where the
Commission makes a decision with respect to cases of specific allegations of a State Party’s
failure to fulfil its obligations.647
The African Charter does not guarantee the right to adequate food, the right to housing or the
right to an adequate standard of living as such. According to some authors, this can be seen as
641
Convention on the Rights of the Child, GA Res. 44/25 of 20 November 1989, entered into force 2 September
1990. Article 24(1)c.
642
Adopted 18 December 1979, entered into force 3 September 1981.
643
In the Preamble of the African Charter on Human and Peoples’ Rights the principle of interdependence is
made clear: “Convinced that it is henceforth essential to pay particular attention to the right to development and
that civil and political rights cannot be disconnected from economic, social and cultural rights in their conception
as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the
enjoyment of civil and political rights”. African Charter on Human and Peoples’ Rights, adopted on 27 July 1981
entered into force on 21 October 1986, 21 I.L.M. 59 (1982). See also Fons Coomans, “The Ogoni Case Before
the African Commission on Human and Peoples’ Rights”, 52 International and Comparative Law Quarterly
(2003) 749-760, at 750-751.
644
Chidi Anselm Odinkalu, “Implementing Economic, Social and Cultural Rights under the African Charter on
Human and Peoples’ Rights”, in Malcom Evans and Rachel Murray (eds), The African Charter on Human and
Peoples’ Rights: The System in Practice, 1986-2000 (Cambridge: Cambridge University Press, 2002) 178-218,
at 196. See also Nana K.A. Busia Jr and Bibiane G. Mbaye, “Filing Communications on Economic and Social
Rights under the African Charter on Human and Peoples’ Rights (The Banjul Charter)”, 3 East African Journal
of Peace & Human Rights (1996) 188-199, at 192.
645
The mandate of the African Commission is established in Article 45 of the African Charter on Human and
Peoples’ Rights.
646
Odinkalu, “Implementing Economic, Social and Cultural Rights”, supra note 644, at 196-198. See also
Coomans, “The Ogoni Case”, supra note 643, at 758-759.
647
Chidi Anselm Odinkalu, “Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social,
and Cultural Rights Under the African Charter on Human and Peoples’ Rights”, 23 Human Rights Quarterly
(2001) 327-369, at 351.
96
a significant disappointment from the promise of the Preamble.648 However, these rights are
covered by a combination of other provisions. Here, one central provision is Article 5, which
recognises respect for human dignity. However, also those economic, social and cultural
rights enlisted in Articles 14-17 of the Charter are of significance. In its case law the African
Commission on Human Rights has given an extensive interpretation of the economic and
social rights provisions which are included in the Charter so that also concerns in relation to
food, clothing, forced evictions, safe drinking water, electricity, and basic medicine can be
read into the Charter.649 The concept of human dignity has thus been given substance and
meaning and can be seen as an over-arching concept of the Charter.650 According to Odinkalu,
recognising “respect of the dignity inherent in the human person” as a distinct right and as a
foundational value in the African Charter breaks down the artificial barriers imposed on
economic, social and cultural rights and opens up vast possibilities for implementing these
rights under the African Charter.651
In the inter-American system of human rights, the right to adequate food is foremost protected
in the Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (Protocol of San Salvador).652 However, an analysis of
the definition given to the right to adequate food under the inter-American system is outside
the scope of this chapter.
Implementing the right to food through national strategies against food insecurity
In Article 2(1) of the ICESCR the State Party “undertakes to take steps, (…) to the maximum
of its available resources, with a view to achieving progressively the full realization of the
rights recognised in the present Covenant”. The concept of “achieving progressively” has
often been used as an argument for considering economic, social and cultural rights as mere
“aspirations”, not as enforceable individual rights.653 However, the Committee on Economic,
Social and Cultural Rights has made clear that the concept is used as a recognition of the fact
that “full realization of all economic, social and cultural rights will generally not be able to be
achieved in a short period of time”, and it should not be used in a way depriving Article 2 of
any meaningful content. All States Parties are under an obligation to “move as expeditiously
648
See, e.g., J. Oloka-Onyangio, “Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social
Rights in Africa”, 26 California Western International Law Journal (1995) 1-23, at 15.
649
See Coomans, “The Ogoni Case”, supra note 643, at 751; Odinkalu, “Analysis of Paralysis or Paralysis by
Analysis?”, supra note 647, at 341 and 364. In communications 54/91, 61/91, 98/93, 167/97 and 210/98 v.
Mauritania, the African Commission found that lack of sufficient food, blankets and adequate hygiene in
detention centres constitutes a violation of Art. 16 of the African Charter. See Compilation of Decisions on
Communications of the African Commission on Human and Peoples’ Rights: Extracted from the Commission’s
Activity Report 1994-2001 (The Gambia: Institute for Human Rights and Development in Africa, 2002) at 186.
See also communication 100/93 v. Zaire in which the Commission held that “The failure of the Government to
provide basic services such as safe drinking water and electricity and the shortage of medicine (…) constitutes a
violation of Article 16.” (Ibid., at 366.) In communication 155/96 v. Nigeria the African Commission is of the
view that right to adequate food is implicitly protected by other rights guaranteed in the Charter.
650
Coomans, “The Ogoni Case”, supra note 643, at 751.
651
Odinkalu, “Analysis of Paralysis or Paralysis by Analysis?”, supra note 647, at 366.
652
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Protocol of San Salvador), adopted on 17 November 1988, entered into force on 16 November
1999, OAS Treaty Series No. 69.
653
Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social
and Cultural Rights (Antwerpen: Intersentia, 2003) at 311; Asbjørn Eide, ”Economic, Social and Cultural Rights
as Human Rights”, in A. Eide, C. Krause and A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook,
Second Revised Edition (Dordrecht: Martinus Nijhoff Publishers, 2001) 9-28, at 10.
97
and effectively as possible towards” full realisation of the rights guaranteed in the
Covenant.654
Furthermore, Article 2 imposes some immediate obligations on the States Parties. In General
Comment No. 3, on the nature of States Parties obligations, the Committee underlines that the
notion in Article 2(1) “undertakes to take steps” imposes obligations that are of immediate
effect. This means that states must take steps “within a reasonably short time after the
Covenant’s entry into force for the States concerned” and also that the measures aimed at
achieving full realisation should be “deliberate, concrete and targeted”.655 Moreover, the
obligation to guarantee the rights without discrimination, put forward in Article 2(2), is also
not subject to limitation.656 Discrimination in access to food or means for its procurement on
the grounds of “race, colour, sex, language, age, religion, political or other opinion, national
or social origin, property, birth or other status” constitutes a violation of the Covenant.657
According to the General Comment the State enjoys a margin of discretion to choose its own
approaches and ways of implementing the right to adequate food, as long as whatever steps
are taken to ensure that everyone is free from hunger and as soon as possible can enjoy the
right to adequate food.658 Particular attention should be given to the need to prevent
discrimination in access to food or resources for food. This should include guarantees of full
and equal access to economic resources. Rights of women to inheritance and ownership of
land and other property is particularly mentioned.659 Moreover, even where a State faces
severe resource constraints, “measures should be undertaken to ensure that the right to
adequate food is especially fulfilled for vulnerable population groups and individuals”.660
In order to take measures which are “deliberate, concrete and targeted”, and indeed live up to
the obligation to “take steps”, states must engage in effective implementation and monitoring
of the rights enshrined in the ICESCR. Designing and adopting programmes for
implementation can be seen as steps in the process of realising the right to adequate food for
all and have been regarded essential preconditions for compliance with the obligations set
forth in the Covenant.661
States should first identify those who are food insecure and then formulate a national strategy
for recreating access to food for these groups and the population as a whole.662 Although
every state has a margin of discretion in applying its own implementation process, the
Committee on Economic, Social and Cultural Rights makes clear that as the ICESCR requires
States Parties to take the necessary steps “to ensure that everyone is free from hunger and as
soon as possible can enjoy the right to adequate food”, this means that a national strategy to
ensure food security must be adopted.663
654
General Comment No. 3 (1990) on the nature of States parties obligations (Article 2, para. 1 of the
International Covenant on Economic, Social and Cultural Rights), Report of the Committee on Economic, Social
and Cultural Rights, UN doc. E/1991/23, at 83-87, at para. 9. See also General Comment No. 12, (1999), para.
14.
655
General Comment No. 3, (1990), supra note 654, para. 2.
656
Ibid., para. 1.
657
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 18.
658
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 21.
659
Ibid., para. 26.
660
Ibid., para. 28.
661
Sepúlveda, The Nature of the Obligations, supra note 653, at 360-361.
662
Asbjørn Eide, “The Realization of Economic, Social and Cultural Rights. The Right to adequate food and to
be free from hunger: Updated study on the right to food”, submitted by Mr. Eide in accordance with Sub-
Commission decision 1998/106, 1999, para. 62. UN doc. E/CN.4/Sub.2/1999/12.
663
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 21.
98
National strategies that address the essential issues causing hunger and malnutrition are
important tools when implementing the right to food. The Right to Food Guidelines reviewed
give further guidance for states that are about to create rights-based national strategies for
food security. Unfortunately, the guidelines are not very clear with regard to the important
aspect of food as a human rights issue, i.e., obligations to respect, protect and fulfil the right
to adequate food.
Actors calling for a Right to Livelihoods
The Committee on ESCR has raised issues of market access, land, and discrimination, i.e.,
broader issues of livelihoods. This has, however, not satisfied activists in the global South.
At the World Social Forum 2009 a group of international NGOs, led by the Programme on
Women’s Economic, Social and Cultural Rights (PWESCR), came together to launch the
Global Network on Women and the Right to Livelihoods. The Global Network aims to
develop a common understanding of the right to livelihoods and is working towards having
the right recognised in international human rights law.664 The right to livelihoods, currently
not recognised as a human right in any international instrument, is seen as connected to issues
of land, water, forest, food security, food sovereignty, food production, and income
security,665 i.e. issues related to the right to food, natural resources and markets.666
Conceptually, it is much more than the right to work – the right to livelihoods includes
options that are outside of the workplace and yet crucial for many people’s survival.667
The Global Network aims to work from the local to the global level, making women’s right to
livelihoods visible, to “restore a new language, a new imagination, a new politics and a new
economy to the world.” The actors highlight that this new polity and politics cannot come
from those who use domination, extraction and power.668 In these processes, the right to
livelihoods is beginning to be defined from the ground up.669
This is an example of how actors strive to expand and reframe food related rights in the
international human rights framework in a way that makes sense for them and the people they
work with in the South.
PWESCR claims that a livelihoods perspective gives agency, especially to women, who are
usually seen as a vulnerable group that are dependent on male breadwinners.670 In most
countries of the South women have invisible roles as workers in agriculture.671 Yet rural
women often play a vital role in providing for their families and communities, growing crops,
gathering firewood or carrying water. However, lack of women’s legal rights to land, lack of
support for women after displacement (e.g. due to ‘development’ projects), and lack of credit
664
Emma Sydenham, “Women and the Right to Livelihoods: World Social Forum 2009”, report published by
Programme on Women’s Economic, Social and Cultural Rights (PWESCR), at 26-27.
665
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 4.
666
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods in The
Human Rights Framework”, Discussion Paper No. 3, July 2011, at 1. Available at http://www.pwescr.org/
PWESCR_Discussion%20Paper%20Final_30-7-2011.pdf, visited 18 December 2011.
667
Ibid., at 2 and 11.
668
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 25.
669
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods”, supra
note 666, at 1.
670
Notes from presentation by Priti Darooka, Executive Director of PWESCR, Turku, Finland, November 2010.
671
80 to 90% of food production in India is carried out by women. Mama cash, “Right to Food is a Women’s
Issue”. Available at http://www.mamacash.org/page.php?id=2532, visited 18 December 2011.
99
all have negative impact on food security. Simultaneously, women are losing control over
seeds, and livelihood-based farming is becoming more and more marginalised.672
The concept of livelihoods comes from the development discourse, and ‘sustainable
livelihood approaches’ are popular among a diverse group of development agencies today,
including Oxfam Malawi. These approaches were developed in the late 1990s and include
focus on rights and power.673 The campaign to develop a ‘right to livelihoods’ can thereby
also be seen as a result of increasing interaction between development and human rights
actors.
PWESCR notes that, at the grassroots level, one of the best ways to explain the right to food
is by discussing livelihoods. Moreover, it points out that referring to the right to livelihood
illustrates that the right to food is not, essentially, the right to be fed, which is a common
misconception about the right to food. PWESCR and its partners situates the right to
livelihood—to make a living and survive with dignity—at the core of the right to food, and
they frame this right as the right to produce one’s own food or earn sufficiently to purchase
it.674 PWESCR is based in India, and as we will see below, the right to food has nationally
been defined in a very specific and narrow way as the right to be fed.
Giving meaning to food rights in India
In this chapter, I have so far reviewed how transnational expert institutions have given
meaning to the right to food as a norm of international human rights law and how NGO actors
strive for a new right – the right to livelihoods – as a complement to how existing rights have
been defined. At the national level, different institutions play a role in defining food and
livelihood related rights and the content usually reflects the specific historic, social, economic
and political context of the country concerned. Although historically, courts have played a
marginal role in the context of socioeconomic rights in most jurisdictions, their role has been
strengthened over the space of the two past decades. In a significant number of jurisdictions,
adjudicatory bodies have intervened to protect a range of social rights,675 thereby contributing
to giving meaning to these rights, including food rights. A careful analysis of the food-related
cases, which tend to be litigated under social security, land and labour rights,676 is outside the
scope of this thesis, especially since Malawi does not belong to these jurisdictions.
I will, however, highlight India as one jurisdiction in which food litigation has lead to the
right to food being defined in a particular way. Part IV of the Indian Constitution lists so
called Directive Principles of State Policy (DPSP). Many of the provisions here correspond to
those protected in ICESCR. Article 43 provides that the State shall secure work, a living
wage, conditions of work that ensure a decent standard of living to all workers, agricultural or
672
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 18.
673
CARE, Oxfam and UNDP were among the first development organizations to develop sustainable livelihood
approaches. See Diana Carney, Sustainable Livelihood Approaches: Progress and Possibilities for Change,
(DFID, 2003) at 10. Available at http://www.eldis.org/vfile/upload/1/document/0812/SLA_Progress.pdf, visited
18 December 2011. See also Ian Scoones, “Sustainable Rural Livelihoods: A Framework for Analysis”, IDS
Working Paper No. 72, 1998. Available at http://www.ids.ac.uk/files/dmfile/Wp72.pdf, visited 10 May 2012.
674
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods”, supra
note 666, at 12.
675
Malcolm Langford, “The Justiciability of Social Rights: From Practice to Theory”, in M. Langford (ed.),
Social rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge
University Press, 2008) 3-45, at 3.
676
Langford, “The Justiciability of Social Rights”, supra note 675, at 4.
100
otherwise (compare to Article 11 and 15 of ICESCR).677 In the 1970s and 1980s the Indian
Supreme Court started to find creative interpretations of constitutional provisions in a way
that transcended its earlier conservative phase and allowed room for a positive direction in its
interventions in issues regarding the poor and disadvantaged.678
Although the issue of recurrent famines in some regions of India has received mixed reactions
in courts, more recent engagements of the Indian Supreme Court, through Public Interest
Litigation cases, forced the Court to confront the paradox of food scarcity while State silos
overflowed with food grains. It was the People’s Union for Civil Liberties that approached the
Court in April 2001 demanding relief after several states in the country faced a second or third
successive year of drought. Despite having 50 million tonnes of food stocks these states failed
to make available minimum food requirements to the suffering population.679 The Court
ordered state governments to make sure that “food is provided to the aged, disabled, destitute
women, destitute men who are in danger of starvation, pregnant and lactating women and
destitute children, especially in cases where they or members of their family do not have
sufficient funds to provide food for them”.680 Later the same year the Court made a detailed
order, converting eight nutrition-related schemes of free food distribution, subsidised grain for
the poorest of the poor, midday meals, family benefit schemes etc into legal entitlement,
making it obligatory for the government to implement them.681 The Court even specified the
minimum quantities of food and nutrition (counted in calories) that had to be made available
according to age group.682 This means that the Court has defined the right to be free from
hunger in a very detailed and narrow way, as a right to be fed by benefit schemes, which is
quite a long way away from the right to livelihoods as envisioned by PWESCR.
The directions issued recognise the State obligation to provide the minimum core of the right
to food. However, decisions in the areas of the right to work and the right to shelter shows
that the judiciary has, in parallel, deferred to a kind of executive policy that undermines these
and other socioeconomic rights. Millions of people have been displaced as a result of the
policy decision to continue with large dams and other projects that weaken the ability of
already socially and economically disadvantaged people to find meaningful livelihood. Many
of these policies are, according to Muralidhar, inconsistent with state obligations under
constitutional and international law.683 The Court’s unwillingness to make orders contrary to
these policies shows the limits of a legal approach to livelihood related policy issues.
It is in this context that civil society actors have come together under the Right to Food
Campaign, formulating a set of common ‘essential demands’ relating to the forthcoming
National Food Security Act. These ‘essential demands’ are claimed to set the Act in the
context of the nutritional emergency in India and the need to address the structural roots of
hunger. The campaign demands a comprehensive Food Entitlements Act (notice that the
677
S. Muralidhar, “India: The Expectations and Challenges of Judicial Enforcement of Social Rights”, in M.
Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law,
(Cambridge: Cambridge University Press, 2008) 102-123, at 103.
678
Ibid., at 122.
679
Ibid., at 116.
680
Case of People’s Union for Civil Liberties v. Union of India (2001), cited in Muralidhar, “India”, supra note
677, at 116.
681
Interim Orders of the Supreme Court, 28 November 2001, Available at
http://www.righttofoodindia.org/orders/interimorders.html, visited 15 December 2011. See Basudeb Guha-
Khasnobis and S. Vivek, “The Rights-Based Approach to Development: Lessons from the Right to Food
Movement in India”, in B. Guha-Khasnobis, S. S. Acharya & B. Davis (eds), Food Insecurity, Vulnerability and
Human Rights Failure (Hampshire: Palgrave Macmillan, 2007) 308-327, at 310.
682
Muralidhar, “India”, supra note 677, at 117.
683
Ibid., at 122.
101
concept ‘entitlements’ is used instead of ‘food security’, indicating the preference among civil
society). The campaign continues along the lines of giving the right to food a specific
definition, demanding “a universal Public Distribution System (providing at least 50 kgs of
grain per family with 5.25 kgs of pulses and 2.8 kgs of edible oils); special food entitlements
for destitute households (including an expanded Antyodaya programme); consolidation of all
entitlements created by recent Supreme Court orders (e.g. cooked mid-day meals in primary
schools; support for effective breastfeeding (including maternity entitlements and crèches);
safeguards against the invasion of corporate interests in food policy; and elimination of all
social discrimination in food–related matters.”684 In a similar manner as the Right to Food
Project in Malawi, actors in India have drafted a Food Entitlements Act (draft 2009), but with
a rather different content and meaning given to the right to food. The main difference is that
while the Malawian draft focuses mainly on the negative state obligations, as will be shown in
part III, the Indian draft includes far-reaching, specific positive obligations in the area of
social security.
The Right to Food Campaign in India applies a legal approach, aiming at further legislation
and legal recognition of food rights,685 as a tool for social change. The campaigners call for
protection of existing legal entitlements but also pushes to go beyond, calling for new
entitlements and also fundamental changes in economic policy. The campaign has repeatedly
called for a comprehensive food security bill that takes into consideration issues related to
production, procurement and distribution together.686 Such a comprehensive Right to Food
Act “would require a fundamental realignment of the manner in which society and the state
uses its resources today.”687 In a statement commenting on the National Advisory Council’s
proposed National Food Security Bill, a Right to Food Campaign accuses the Bill of being
‘minimalist’ and far from the comprehensive act they had pushed for: “The recommendations
essentially deal only with a cereal-based targeted Public Distribution System and are a far cry
from the comprehensive approach required to truly ensure food security for all.”688 The Right
to Food Campaign in India is an example of struggles between different state and non-state
actors over definitions of food rights. It shows how difficult it is to use rights-based
arguments to push for structural change.
2.3.5 Concluding remarks
Food security programmes and food aid have been the development response to hunger while
the human rights response has been establishing a legal entitlement that in theory can be
claimed from duty-bearers. Despite this difference in emphasis, the two discourses are closely
related to each other, both underlining physical and economic access to food. Food security
has evolved from a focus on supply and availability of food on a national level, to access to
food on a household and individual level. Physical and economic access to food is a key
factor in how the right to adequate food has become to be defined.
In this chapter we have seen that the poor and the hungry, who are mostly women, live in
rural areas and struggle for their daily livelihoods. We have seen that there are several
684
Right to Food Campaign, “Right to Food Act, Introduction”. Available at http://www.righttofoodindia.org/
right_to_food_act_intro.html, visited 15 December 2011.
685
Compare to how ‘legal approach’ is used by Goodale, “Locating Rights”, supra note 25, at 6.
686
Right to Food Campaign’s Response to NAC’s decisions regarding the National Food Security Act,
November 2010.
687
Food Entitlements Act, Draft of 12th September 2009, at 4. Available at http://www.righttofoodindia.org/
data/rtf_act_draft_charter_sept09.pdf, visited 15 December 2011.
688
Right to Food Campaign’s Response, supra note 686.
102
competing actors giving meaning to the right to food: UN-led expert institutions, national
courts, NGOs and other civil society actors. The PWESCR’s efforts to establish a right to
livelihoods in the international human rights system and the Right to Food Campaign in India
are examples of how civil society actors aim at giving meaning to food rights in a way that
makes sense to them and the people they work with. They push for redefinition and expansion
of current legal interpretations of the right to food, calling for what they feel are ‘just
entitlements’. For the PWESCR and its partners the right to livelihoods makes better sense in
the lived reality of marginalised groups, especially women, whom they claim to represent.
We have seen certain tensions in what kind of meaning and content the right to food should
have. The first tension is between the right to food as a broad, collective proposition that is to
be implemented through political programmes and between an individual, justiciable
entitlement to be claimed through courts or similar forums. The Committee on ESCR and the
Special Rapportuer on the right to food have been in favour of the right to food being an
individual, legal entitlement but at the same time not avoided broader, structural issues
causing hunger and lack of livelihoods. The second tension is between the ambition to link the
right to food to broader issues of livelihoods and a narrower welfare-ist approach to fulfil the
right to be free from hunger through social protection measures, including food distribution.
These tensions will appear again in the Malawi case-study in part III. We have, moreover,
seen that the concrete content of a human rights-based approach to food security is not clear,
despite the Right to Food Guidelines.
2.4 The role and meaning of ‘human rights principles’ in development practice
In this chapter I first highlight attempts to define human rights-based approaches to
development and then I concentrate on exploring the meaning given to key principles in these
approaches. The following concepts are analysed: express linkage to human rights, equality
and non-discrimination, accountability, participation and empowerment. It is clear that an
emphasis on principles such as participation, accountability, and empowerment is not unique
to human rights-based approaches to development practice. Equality and a focus on
vulnerable and marginalised groups suffering from discrimination has also been part of ‘good
development practice’ for a long time. This chapter tries to resolve what exactly an emphasis
on human rights adds to these principles. For each principle my ambition is to see how it has
been interpreted and applied in the development discourse as an element of ‘good
development practice’ and how it is understood in human rights discourse. Where it is
possible, I also show what happens to the principle when the two discourses come together as
a ‘human rights-based approach to development cooperation’. Moreover, I try to identify what
added or new value human rights thinking may bring to the principle in question.
2.4.1 Defining human rights-based approaches to development
From the start it is good to be aware of the distinction between rights-based approaches to
public policy at the national level and human rights-based approaches to development
cooperation. This section mainly deals with the latter, keeping in mind that there are “plural
rights-based approaches, with different starting points and rather different implications for
development practice.”689 Darrow and Tomas point out that among UN agencies alone there is
significant differentiation between mandates, operational frameworks and circumstances. It
may be possible to generalise certain principles, but with regard to programming frameworks
it is understandable that one size does not fit all. Nonetheless, conceptual clarity is important
689
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1415.
103
in order to highlight the distinct opportunities and challenges involved in human rights-based
approaches.690
Sometimes the concept ‘rights-based approach to development’ is used instead of ‘human
rights-based approach to development’. Some development actors are consistent in their usage
of the terms, making a difference between the two terms, while others are inconsistent in the
usage of the terms. (And some others use ‘rights-based approach’ simply as shorthand for
‘human rights-based approaches’.)691 The difference is in emphasis: ‘human rights-based’ is
seen as being linked more explicitly to the international human rights framework and is
sometimes described as ‘legalistic’ (i.e., applying a definition of human rights as those
standards agreed upon in international instruments). ‘Rights-based approaches’ are seen to be
emphasising ‘empowerment’ of the poor and marginalised people and groups to claim their
rights, and usually makes more inspirational use of human rights language,692 (fitting better
with the philosophy of an actor-oriented perspective). The Oxfam programme in Malawi,
which is analysed in part III, applies a rights-based rather than a human rights-based
approach. Plipat has made a distinction between three variants of rights-based approaches:
popular, equity, and classical. The first one emphasises grassroots organising, the second
global advocacy, and the third international human rights standards.693 This again shows the
large variations and differences in emphasis.
These approaches are not necessarily mutually exclusive,694 but some commentators believe it
to be problematic when there is a lot of emphasis that ‘one-size of doing human rights-based
approaches does not fit all’, reflecting that there is no single, coherent way of doing this work,
thereby assuming that by invoking multiple expressions of the approach, so called human
rights-based approaches could cover most incorporations of human rights within the
development sector.695 It is feared that the notion of rights-based approaches can easily
become a loose and ill-defined idea, which everyone can adopt and interpret to fit their own
interests and agendas.696
In order to highlight the different approaches I devote a great deal of effort to reviewing the
meanings attached to human rights-based approaches in this thesis. Moreover, human rights-
based approaches do not account for all incorporations of human rights into the development
sphere. Therefore it is good to be aware of these distinctions.
The Common Understanding is probably the most ambitious attempt to define a human rights-
based approach to development cooperation and therefore it receives special attention in the
following sections. The Common Understanding makes clear that:
1. All programmes of development co-operation, policies and technical assistance
should further the realisation of human rights as laid down in the Universal
Declaration of Human Rights and other international human rights instruments.
2. Human rights standards contained in, and principles derived from, the Universal
Declaration of Human Rights and other international human rights instruments guide
690
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 483.
691
Hannah Miller, “From ‘Rights-Based to ‘Rights-Framed- Approaches: A Social Constructionist View on
Human Rights Practice”, 14 The International Journal of Human Rights (2010) 915-931, at 917.
692
Laure-Hélène Piron, “Learning from the UK Department for International Development’s Rights-Based
Approach to Development Assistance”, Overseas Development Institute, July 2003, at 7. Available at
http://www.odi.org.uk/resources/docs/2313.pdf, visited 10 May 2012.
693
Plipat, “Developmentazing Human Rights”, supra note 61, at 6.
694
Piron, “Learning from the UK”, supra 692, at 26.
695
Miller, “From ‘Rights-Based to ‘Rights-Framed- Approaches”, supra 691, at 918.
696
Harris-Curtis et al., The Implications for Northern NGOs, supra note 240, at 40.
104
all development cooperation and programming in all sectors and in all phases of the
programming process.
3. Development cooperation contributes to the development of the capacities of ‘duty-
bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.
The first point means that the aim of all activities is to contribute directly to the realisation of
one or several human rights. The second point means that human rights principles guide
programming in all sectors, and in all phases of the programming process. The third point
means that in a human rights-based approach to development cooperation “human rights
determine the relationship between individuals and groups with valid claims (rights-holders)
and State and non-state actors with correlative obligations (duty-bearers)”.697 The strong
emphasis on international human rights instruments makes it into a classical/legal approach,
which is natural for UN agencies bound by the UN Charter. However, UN agencies have been
creative in applying the Common Understanding and not all agencies use a legal approach.
The Common Understanding is further elaborated on in the report Frequently Asked
Questions on a Human Rights-Based Approach to Development Cooperation, listing a
number of essential attributes of the approach:
- “A human rights-based approach is a conceptual framework for the process of
human development that is normatively based on international human rights
standards and operationally directed to promoting and protecting human rights.”
- The main objective of development should be to fulfil human rights.
- In a human rights-based approach rights-holders and their entitlements are
identified, and the corresponding duty-bearers and their obligations are also
identified.
- Principles and standards derived from international human rights treaties guide
all development programming in all sectors and in all phases of the programming
process.698 The principles most often evoked are non-discrimination,
accountability and participation.
As we can see, these four points more or less repeat what is said in the Common
Understanding, and I take this as a sign that there is general agreement on these basic
attributes of the approach at the UN level. There seems to be agreement on the core elements
defining human rights-based approaches to development cooperation: Human rights-based
approaches work to strengthen the capacity of duty-bearers to respect, protect, and fulfil their
human rights obligations. Simultaneously, the rights-holders’ capacity to demand and claim
that their human rights are respected, protected, and fulfilled is strengthened. The aim of
human rights-based development is human rights realisation and the process of how this aim
is reached is informed by human rights principles.
It is not only within the UN that human rights have entered into development programming. A
wide range of development NGOs, such as Save the Children, Care International, Oxfam and
697
Common Understanding, supra note 50. The state carries legal obligations under international human rights
law, but also non-state actors have responsibilities that are taken into account in situation analysis by agencies
such as FAO and UNICEF. See Food and Agriculture Organization of the United Nations, Methods to Monitor
the Human Right to Adequate Food (Rome: FAO, 2008) at 40. Duty-bearers include elected and appointed
officials, civil servants, representatives of government and organisations (e.g. CSOs) retained by the government
to deliver services. They can be acting on the community level or the national level. Rights-holders are
individual citizens and non-citizens living within a state. The interests of rights-holders are sometimes
represented by organisations such as NGOs, INGOs, unions and other civil society groups.
698
OHCHR, “Frequently Asked Questions”, supra note 81, at 15-16.
105
ActionAid, have been exploring rights-based approaches to their work. Pettit and Wheeler
argue that the background to this trend is development practitioners began to recognise the
limits of their approaches and experienced a need to address structural causes of inequality
and exclusion and to confront these at all levels, i.e., legal, political, social, cultural, and
economic levels. Legal reforms and enforcement along with public awareness and action
became new methods of voicing demand and seeking accountability. There was general
disillusionment with projects. At the same time human rights groups needed to engage with
community-based organisations and membership associations instead of relying on
professionals to advocate on behalf of the rights-holders. In order to do that the human rights
professionals needed new skills such as community organising, participatory appraisals, etc.
These factors all contributed to blurring the traditional lines between rights and development.
And the need for change was mutual: development needed rights as much as rights needed
development.699
Donor interest in human rights strategies for development has also been considerable, for
instance in United Kingdom’s Department for International Development (DFID), The
Swedish International Development Agency (SIDA) and The Norwegian Agency for
Development (NORAD),700 and lately also Finland claims to apply a human rights-based
approach to development, promoting the position and rights of people as rights-holders and
the obligations of states as duty-bearers while emphasizing equality, non-discrimination and
the right to self-determination.701 With new aid modalities such as sector and budget support,
donor governments see opportunities to influence recipient government’s policies, but are at
the same time concerned with lack of accountability on the part of the recipient government.
In order to remedy the situation, there have been reforms of public institutions and support to
civil society in holding the government and public sector accountable. Human rights have
been arguments to back up this work, and have thereby also become part of outcome-driven
and managerial approaches of top-down development.
The OECD DAC Network on Governance has published a synthesis report of donor
approaches and experiences of integrating human rights into development. The authors have
used a five-part typology for the integration of human rights into development: (1) Implicit
human rights work; (2) human rights projects; (3) human rights dialogue (4) human rights
mainstreaming; and (5) human rights-based approaches. The report found that most agencies
were applying the three middle categories while a few were moving towards human rights-
based approaches. In human rights-based approaches, “human rights [are] considered
constitutive of the goal of development, leading to a new approach to aid and requiring
institutional changes.”702
The DAC report shows that still in 2005, when the report was published, the majority of
development interventions in the area of human rights were separate from socioeconomic
issues, such as water or health. The majority of direct interventions were civil and political
rights projects. At policy level there was emphasis on the positive place of human rights, but
human rights conditionality remained a feature of development programmes,703 indicating that
699
Jethro Pettit and Joanna Wheeler, “Developing Rights? Relating Discourse to Context and Practice”, 36 IDS
Bulletin (2005) 1-8, at 2.
700
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 480.
701
“Suomen kehityspoliittinen toimepideohjelma”, 16.2.2012. Available at http://www.formin.fi/public/default.
aspx?nodeid=15319, visited 15 May 2012.
702
Laure-Hélène Piron with Tammie O´Neil, “Integrating Human Rights into Development: A synthesis of
donor approaches and experiences”, prepared for the OECD DAC Network on Governance, September 2005, at
iii-iv. Available at http://www.odi.org.uk/resources/docs/4404.pdf, visited 15 May 2012.
703
Ibid., at iii-iv.
106
main attention is to create the conditions or infrastructure to promote and provide human
rights, such as better laws, courts, stronger NGOs, democratic institutions, more transparent
state apparatuses while at the same time linking aid to human rights criteria.704 What these
approaches have in common is that human rights enter into development programming as an
element of outside quality control.
Celestine Nyamu-Musembi and Andrea Cornwall make an overview of what multilateral
agencies, bilateral agencies and international development NGOs say about rights-based
approaches to development. The authors conclude that there are certain common elements and
principles, but with different emphasis. Most organisations see that the approach potentially
can transform development practice from a focus on identifying and meeting needs to
enabling people to claim their human rights. This entails (1) work with duty-bearers to
strengthen their capacity in respecting, protecting and fulfilling human rights, (2) work with
citizens and marginalised groups to claim their rights. The role the approach plays in the
concrete work of the different organisations is, however, distinctively different. Some
agencies tend to see human rights-based approaches as a broad set of principles defining an
overarching approach to development that can serve as a new way of repackaging
interventions. Participatory approaches as well as efforts to address issues of accountability
alongside efforts to enable people to empower themselves are examples of principles that
often are referred to in this context,705 as is shown in the following sections.
2.4.2 Five principles as key elements of human rights approaches to development
cooperation
As we have seen in the previous sections human rights-based approaches often come along
with an emphasis on so called human rights principles. These principles are seen as giving
guidance on the processes that should underpin legislation, policy, and implementation at all
levels and between all actors.706
Before the adoption of the Common Understanding and the further explanations given to the
approach in the report Frequently Asked Questions on a Human Rights-Based Approach to
Development Cooperation, five key principles were often used as a way to define human
rights-based approaches to development cooperation. Sometimes you also see the same
principles referred to as the acronym PANEL: participation, accountability, non-
discrimination and attention to vulnerable groups, empowerment and linkage to rights.707 The
principles can be seen as the operational expression of the idea that human rights and
development are interlinked, and they have implications for programming.
In the following I review these five interrelated key principles in another order: Express
linkage to human rights norms and standards, equality and non-discrimination, accountability,
participation, and empowerment.708 In the beginning of my research I used these five
704
See Uvin, Human Rights and Development, supra note 52, at 168.
705
Nyamu-Musembi and Cornwall, What is the ‘Rights-Based Approach’ all about?, supra note 225, at 45-46.
706
Clare Ferguson, “Linking Human Rights and Aid Effectiveness for Better Development Results: Practical
Experience from the Health Sector”, Report for the Human Rights Task Team of the OECD-DAC Network on
Governance, 2008, at 16. Available at http://www.oecd.org/dataoecd/41/53/43529192.pdf, visited 14 May 2012.
707
Human Rights Education Associates (HREA), “Guide for Applying Indicators within UN Human Rights-
Based Programming”, prepared for UNDP, November 2007, at 6. Available at http://www.hrbatoolkit.org/wp-
content/uploads/2011/02/HRBA_Indicators_Toolkit_HREA.pdf, visited 10 May 2012.
708
Mary Robinson focused on these five principles in her lecture “Bridging the Gap between Human Rights and
Development: From Normative Principles to Operational Relevance”, World Bank Presidential Lecture,
Washington, 3 December 2001. See also OHCHR, “Human Rights and Poverty Reduction”, supra note 243;
Jakob Kirkeman Hansen and Hans-Otto Sano, “The Implications and Value Added of a Rights-Based
107
principles as a starting point for describing what human rights-based approaches are all about
and it influenced the questions raised in the empirical research. When I started to analyse my
empirical data from Malawi, I was struck by how differently the actors involved in the three
food security related projects interpreted and applied the principles of equality and non-
discrimination, accountability, participation and empowerment. I therefore feel that it is
essential to take a closer look at them and try to pinpoint which dimensions are related to
human rights principle and which are those that rather belong to ‘good development practice’.
As the principles are very interrelated, I have not seen anyone who has made a deliberate and
conscious effort to put the principles in a hierarchical order. The order chosen in this review is
conscious, yet not suggesting a strict hierarchy of importance. The reason ‘express linkage to
human rights norms and standards’ is dealt with first is that this principle is the starting point
for any action or strategy that wants to move into the direction of using human rights norms as
a map for development policies and practices. It also has implications for situation or problem
analysis and therefore naturally comes first. Non-discrimination and equality is the one
principle that has the strongest legal justification in human rights law and is perhaps the
clearest and least contested of the principles, and therefore it is dealt with second. As many
agree that accountability under the human rights framework adds value because it gives a
clear link to obligations of duty-bearers to respect, protect and fulfil human rights of rights-
holders, this principle is taken up as number three. Participation has strong roots in the
development discourse and it is not always so clear what element human rights add, especially
since the human rights community is known to be run by an elite group of specialised experts
in many societies. Empowerment is the principle that has the weakest link to the legal human
rights framework, and is therefore dealt with last.
Empowerment, which often is seen as a core element of human rights-based approaches to
development, is not mentioned per se in the list of principles in the Common Understanding.
Instead, empowerment is mentioned as part of “other elements of good programming
practices that are also essential under a human rights-based approach”. Point three out of 13
states that “strategies are empowering, not disempowering.”709 Perhaps this indicates that
empowerment is not seen as a legal human rights principle but rather as ‘good development
practice’. This is quite natural when one understands the historic background of the concept
and how it emerged in the ‘grassroots development discourse’ in the 1980s710 – long before it
became popular within human rights discourse. (After all, there is no ‘right to
empowerment’.)
The Common Understanding gives a short explanation of the principles it raises (that are not
the same as the five I will review). The way human rights principles are explained in the
Common Understanding is strongly linked with the international human rights regime. It is,
for example, explained under ‘accountability and rule of law’ that states and other duty-
bearers are answerable for the observance of human rights. They have to comply with legal
norms and standards, and when they fail to do so, rights-holders can institute proceedings for
redress before a competent court or other adjudicator.711 This shows that the Common
Approach”, in Bård A. Andreassen & Stephen P. Marks (eds) Development as a Human Right: Legal, Political,
and Economic Dimensions (Cambridge: Harvard University Press, 2006), 36-56, at 40-41; Amnesty International
et al, “Human Rights-Based Approaches and European Union Development Aid Policies”, 2008. Available at
http://www.ihrnetwork.org/uploads/files/10.pdf, visited 14 May 2012; Equal in Rights, “What is the Human
Rights-Based Approach to Development?”. Available at http://www.equalinrights.org/human-rights-based-
development-hrbd/, visited 14 May 2012. The order in which these references list the principles is not consistent.
709
Common Understanding, supra note 50.
710
Black, Development in Theory and Practice, supra note 542, at 48.
711
Common Understanding, supra note 50.
108
Understanding focuses on the judicial aspect of accountability, which is only one aspect of the
broad concept accountability, as we will see in the next sections. The problem that the human
rights-based approaches are associated with loosely defined procedural principles, for
example raised by Russell,712 arises when different UN agencies produce their own
interpretations of the Common Understanding. Among UN agencies there is a very varied
practice concerning human rights-based programming, despite the Common Understanding.
The limits between what is ‘good development practice’ and what is human rights-based
practice is often blurred, to say the least, and, moreover, we should keep in mind that human
rights-based approaches seek to strengthen existing good development practice, rather than
replacing them. Darrow and Tomas make a distinction between ‘good development
principles’, using instrumental or utilitarian motivations, and normatively-based approaches
driven by the conviction that human rights are ends in themselves and therefore they must be
given explicit consideration in development work.713 I will refer to this distinction and test
whether it holds true under closer scrutiny.
2.4.3 Express linkage to human rights norms and standards: Using human rights law
as a framework for analysis
The whole rationale behind the Common Understanding can be seen in light of this principle:
Development cooperation should contribute to the realisation of human rights; human rights
standards and principles guide all phases of programming; human rights determine the
relationship between rights-holders and duty-bearers, i.e., there is express linkage to the
normative human rights system. The questions that need to be answered include: who are the
duty-bearers at different levels and what are their responsibilities in regard to a specific
problem? Are these duty-bearers also rights-bearers, i.e., do they rely on others performing
their duties in order to be able to deliver their own?714
According to Jonsson, programming is first and foremost assisted by recognising that human
rights standards determine the development outcomes while human rights principles define
the conditions for an acceptable development process.715 This means that ‘the end does not
justify the means’,716 i.e., there must be respect for the do no harm principle. In the Common
Understanding it is made clear that human rights-based programmes should monitor and
evaluate both outcomes and processes guided by human rights standards and principles. It is
also important that assessment and analysis is directed towards identifying a pattern of rights
and obligations. These elements are said to be necessary, specific, and unique to a human
rights-based approach.717
From a practical level, it can, however, be argued that human rights standards are not precise
enough to concretely inform this aspect of development programming.718 (The Common
Understanding, however, does not only refer to standards and principles but also
712
Anna F. S. Russell, “International Organizations and Human Rights: Realizing, Resisting or Repackaging the
Right to Water?” 9 Journal of Human Rights (2010) 1-23.
713
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 486.
714
HREA, “Guide for Applying Indicators”, supra note 707, at 19.
715
Urban Jonsson, “A Human Rights-Based Approach to Programming”, in P. Gready & J. Ensor (eds),
Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (London: Zed
Books, 2005) 47-62, at 52.
716
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 496.
717
Common Understanding, supra note 50.
718
Jonsson, “A Human Rights-Based Approach to Programming”, supra note 715, at 52.
109
recommendations by treaty bodies: “Programming is informed by the recommendations of
international human rights bodies and mechanisms”, and they can be very concrete.)
Before deciding what measures are needed in order to reach a certain development outcome
there needs to be careful assessment, analysis and planning. There is still no clear answer
among UN agencies how to integrate a human rights perspective when conducting assessment
and analysis at a country level. Some preliminary attempts have been made and I will review
some of them here. According to the “Guide for Applying Indicators within UN Human
Rights-Based Programming” step one is to understand the human rights situation at the
country level. This is carried out through a review of international human rights norms and
standards, aiming at identifying areas of progress towards realization of human rights, as well
as areas where rights may be violated. As part of step one, a preliminary assessment of
exclusion and vulnerability is carried out. Here human rights-based indicators, which are
disaggregated in order to identify excluded and vulnerable groups, as well as those facing
discrimination, play a key role. Indicators for understanding the human rights situation in a
specific country include country ratification of international human rights treaties; status of
state reports submitted to UN bodies; other reports and experts’ judgments data; surveys on
human rights awareness; analysis of percentage of budget spent on human rights activities.719
As we can see this kind of analysis is on a very general level and relies on secondary data
from expert sources. A risk is that practitioners get ‘stuck’ analyzing legal and policy contexts
without connecting this information and analysis to input from communities – or even the
policy work carried out by the national government itself.720 This is an example of the
shortcomings of top-down approaches.
A human rights-based situation analysis may reveal “capacity gaps in legislation, institutions,
policies and voice”,721 (‘voice’ equals the level of opportunity among actors to participate and
articulate their opinions). To address the capacity gaps, national laws may need to be brought
into compliance with treaty obligations. Institutions may need to be strengthened, inter alia,
through improving governance and providing people with effective remedies when their rights
are violated. In addition, discrimination may be combated through policy reforms.722 These
are some of the substantive implications of a human rights-based approach that have
implications for both the process and the outcome.
The Office of the High Commissioner for Human Rights has set out a human rights approach
for the Millennium Development Goals in a publication from 2008. The most concrete
suggestions it makes is that human rights are prioritised by making policy choices and
resource-allocation decisions within a human rights framework,723 i.e., the human rights
framework is used in situation analysis to assist in policy choices. This is based on the
argument that international human rights law provides a framework for assessing the
reasonableness of policy choices and also that international human rights law pre-dates the
MDGs, which means recipient states as well as donor states have existing legal obligations
under human rights treaties. The questions that need to be asked include: Is the policy (related
to the realisation of a MDG target, in this case) resulting in human rights violations? Is the
policy adequately directed towards realizing human rights and ensuring equality, including
gender equality? Are there adequate resources available for implementation? Is there risk of
719
HREA, “Guide for Applying Indicators”, supra note 707, at 16-17.
720
Ibid., at 18.
721
OHCHR, “Frequently Asked Questions”, supra note 81, at 27.
722
Ibid., at 27.
723
Ibid., at 7.
110
decline in the realisation of rights, contravening the principle of non-retrogression?724 Policies
and programmes intended to realise MDGs have the potential to violate human rights, and
therefore human rights impact assessment is important in order to respect the ‘do no harm’
principle.725
UNICEF is perhaps the agency that has made the greatest effort to supply human rights-based
tools for all phases of the programming cycle, but in these tools there is no express linkage to
human rights law as such. The FAO uses a similar approach when conducting a right to food
assessment, but with slightly stronger connections to human rights law. The FAO claims that
only when the factors that hinder individuals to realise their right to food are known can a
targeted right to food strategy be implemented. So called causality analysis will reveal to what
extent, and why, the right to food is either being violated or at risk of being violated, as well
as the major causes of these violations and the key actors involved. The aim is that the legal,
policy and institutional framework must respond to the causes of malnutrition.726 Role
analysis not only identifies duty-bearers in relation to the realisation of a certain human right,
but also their specific corresponding obligations and responsibilities. When there is a list of
obligations and responsibilities for different groups of duty-bearers, it is necessary to
investigate whether or not the obligations are being met.727
The FAO points out that in a human rights approach the primary concern is with ‘what ought
to be’. Only analysing ‘what is’ and ‘why’ is by itself not sufficient. It is important to focus
on the aim, rather than the problem and subsequently the conditions that need to be present at
different levels to achieve good nutrition. Basic conditions should be equitable access to
resources, transparent leadership, participatory policy formulation, and discrimination-free
control of resources.728
There is limited information available about the role of human rights law in programming in
general and in situation analysis in particular. There are many technicalities surrounding
situation analysis and the purpose here is not to give a full overview of all details. The main
point I want to make is that the questions asked in human rights-based situation analysis are
different since there is, or should be, express linkage to human rights norms and standards.
The focus should be on the accountability aspect of human rights/development failures: Who
has a duty? Who has a right? Why is this duty not executed? Why is the right not
claimed/realised? What conditions need to be present in order for the duty-bearer to execute
his obligations and responsibilities and the rights-holder to claim and enjoy his rights? When
these questions are raised in situation analysis they do add a new perspective to ‘good
development programming’.
724
Norms already adopted should not be removed at a later date, i.e., states should not go backwards in the
standards of protection of human rights ensured to individuals.
725
Office of the High Commissioner for Human Rights, Claiming the Millennium Development Goals: A Human
Rights Approach (United Nations: New York and Geneva, 2008) at 12-13. Interestingly, none of the national
MDG reports reviewed for a study by the Highlevel taskforce on the Right to Development made any reference
to individual countries’ commitments under international human rights treaties or conventions, despite the fact
that the national reports considered were of countries that were all signatories and parties to the several
international covenants. This indicates that there is no human rights approach to the MDGs outside of the
OHCHR report. See High-level task force on implementation of the right to development, “The Right to
Development and practical strategies for the implementation of the Millennium Development Goals, particularly
Goal 8”, adopted 2 November 2005, UN doc. E/CN.4/2005/WG.18/TF/CRP.1, para. 20.
726
Food and Agriculture Organization of the United Nations, Guide to Conducting a Right to Food Assessment
(Rome: FAO, 2009) at 20-21.
727
FAO, Methods to Monitor, supra note 697, at 40-41.
728
Ibid., at 61.
111
2.4.4 Equality and non-discrimination
The equality and non-discrimination discourse
Before examining human rights discourse related to equality and non-discrimination, it is
interesting to raise another related term, ‘equity’, mainly used in development discourse.
In the World Development Report 2006: Equity and Development the World Bank highlights
inequality of opportunity as a “waste of human potential” and “missed development
opportunities”. The report observes that all over the world there is a persistent pattern of
individuals and groups facing highly unequal opportunities to better their situation
economically and socially. There are systematic differences in opportunities for individuals
and groups who differ in skin colour, caste, gender, or place of residence. Such inequalities
are often reproduced over time and affect welfare, human development, and also economic
growth.729 In human rights discourse, this would be called indirect discrimination if it could
be shown that a provision, criterion or practice puts “persons having a status or a
characteristic associated with one or more prohibited grounds” for discrimination “at a
particular disadvantage compared with other persons”.730
The World Development report does not offer a definition of ‘equity’, nor does it explain how
it relates to equality and direct or indirect discrimination, but it does make clear that equity
relates to two basic principles: Equal opportunity and avoidance of absolute deprivation. The
second principle reflects the idea that the road from opportunity to outcome may be anything
but easy, even if the equal opportunity principle is upheld. Therefore, society may decide to
intervene to protect its ‘neediest members’.731 These two principles are part of human rights
thinking as well. Equity and equality may be part of different discourses but they have
considerable substantive overlap.732
The rights to equality and non-discrimination have a strong foundation in international human
rights law,733 and have been reaffirmed in declarations and codes of conduct developed by
humanitarian agencies.734 In 2008, a group of human rights and equality experts adopted 27
principles of equality735 to give guidance on complex and controversial issues. This
declaration is not legally binding in any way, but reflects international trends in the area of
equality law and human rights law736 and is therefore referred to here when trying to pinpoint
what is characteristic of equality thinking in human rights discourse.
The right to equality is defined as “the right of all human beings to be equal in dignity, to be
treated with respect and consideration and to participate on an equal basis with others in any
area of economic, social, political, cultural or civil life. All human beings are equal before the
law and have the right to equal protection and benefit of the law.” The Declaration on
729
The World Bank, World Development Report 2006: Equity and Development (Washington: The World Bank,
2006) at 27.
730
Declaration of Principles on Equality, Principle 5, 2008. Available at http://www.equalrightstrust.org/
endorse/index.htm, last visited 5 January 2012.
731
The World Bank, World Development Report 2006, supra note 729, at 18-19.
732
Presentation by Dr Dimitrina Petrova, “International Trends in the Area of Equality”, Helsinki, 6 October
2011.
733
For instance in the International Covenant on Economic, Social and Cultural Rights of 1966, arts. 2(2) and 3,
and the International Covenant on Civil and Political Rights of 1966, arts. 2(1), 3, 4(1) and 26.
734
See e.g. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in
Disaster Relief, 1995. Available at http://www.ifrc.org/Docs/idrl/I259EN.pdf, visited 14 May 2012.
735
Declaration of Principles on Equality, 2008, supra note 730.
736
Petrova, “International Trends in the Area of Equality”, supra note 732.
112
Principles of Equality goes on to affirm that “Equal treatment, as an aspect of equality, is not
equivalent to identical treatment.” It is necessary to “treat people differently according to their
different circumstances”, and moreover, “to be effective, the right to equality requires positive
action.”737 There is rich case law both on international and national levels to support the claim
that positive action is required to fulfil the right to equality, but that is beyond the scope of
this chapter. What can be noted is that already in 1989 the Human Rights Committee pointed
out that the principle of equality sometimes requires States parties to take affirmative action in
order to diminish or eliminate conditions which cause or help to perpetuate discrimination
prohibited by the Covenant on Civil and Political Rights.738
Moreover, the Committee on ESCR has made clear that “in addition to refraining from
discriminatory actions, States parties should take concrete, deliberate, and targeted measures
to ensure that discrimination in the exercise of Covenant rights is eliminated,”739 i.e., the
Committee calls for positive action on behalf of the duty-bearers. Legislation is one measure
to address discrimination but governments also need to ensure that policies, plans, and
strategies are in place and implemented in order to address both formal and substantive
discrimination by public and private actors in the area of the Covenant rights.740 The
heightened attention given to positive action reflects the thinking that equality of opportunity
is not enough; in order to have equal capabilities or possibilities to participate in economic,
social, political, cultural or civil life, certain outcomes such as education, health etc. of
disadvantaged groups also need to improve.741
For development policy and practice, discrimination in the area of economic, social, and
cultural rights is a huge challenge. The Committee on ESCR reiterates that Article 2(2) of the
ICESCR requires States parties to guarantee non-discrimination in the exercise of each of the
economic, social and cultural rights enshrined in the Covenant. Discrimination constitutes any
“distinction, exclusion, restriction or preference or other differential treatment that is directly
or indirectly based on the prohibited grounds of discrimination and which has the intention or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of Covenant rights.”742 The list of prohibited grounds of discrimination has been expanded
over time and the one given in the Declaration of Principles on Equality includes, inter alia,
pregnancy and economic status.743 The Declaration also clarifies the notions of direct and
indirect discrimination, both of which have been part of the equality discourse for a long time.
It is direct discrimination when a person or group of persons is treated less favourably than a
person or group of persons would be treated in a comparable situation, and this is related to
one or more prohibited grounds.744 Most non-discrimination law regimes also include a
prohibition of indirect discrimination, a concept which is defined differently in different
jurisdictions but usually says that discrimination on any of the discrimination grounds may
take place when a practice or rule has a detrimental effect on persons meant to be protected
737
Declaration of Principles on Equality, 2008, supra note 730, principle 2 and 3.
738
Human Rights Committee, General Comment No. 18 (1989), para. 10. Adopted at the thirty-seventh session.
Emphasis added.
739
General Comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, Committee on
Economic, Social and Cultural Rights, Report of the Forty-second session, UN doc. E/C.12/GC/2, 10 June 2009,
para. 36.
740
Ibid., para. 38.
741
Petrova, “International Trends in the Area of Equality”, supra note 732.
742
General Comment No. 20 (2009), supra note 739, para. 7.
743
Declaration of Principles on Equality, 2008, supra note 730, principle 5.
744
Ibid.
113
against discrimination.745 Schiek finds that the arguments raised in indirect discrimination
claims potentially expose structural disadvantage, which may lead to policy changes, but
judicial procedures cannot necessarily repair disadvantage.746 This is an area outside the scope
of this chapter. What is interesting from a development perspective is whether human rights
law on equality and non-discrimination can be used to improve efforts to alleviate poverty.
The Declaration of Principles on Equality calls for measures against poverty in Principle 14:
“As poverty may be both a cause and a consequence of discrimination, measures to alleviate
poverty should be coordinated with measures to combat discrimination, in the pursuit of full
and effective equality.” This is a controversial issue, and poverty as a ground for
discrimination has not yet been accepted in any statement within the human rights framework.
The Principles and Guidelines for a Human Rights Approach to Poverty Reduction instead
highlights that poor people are often victims of discrimination on grounds such as birth,
property, national and social origin, race, colour, gender, and religion.747
It is clear that obligations in relation to the rights to equality and non-discrimination have
implications for how development policies are implemented. For instance, as the poor are the
most disadvantaged and marginalised groups in every society, it is crucial that a poverty
reduction strategy starts by addressing their special needs as well as their right not to be
discriminated against.748
When using equality and non-discrimination as an important ‘lens’ for development efforts, it
is essential to be aware how laws, policies, or administrative practices may create or combat
structural discrimination. In human rights-based approaches it is highlighted that a great deal
of poverty originates from political, social, cultural, or institutional discriminatory practices,
ranging from the international to the local levels.749 In order to measure the impact of
different policies, it is important that disaggregated data by prohibited grounds of
discrimination such as sex, disability, ethnicity, religion, language, geographic location and so
forth, is collected and analysed.750 However, this much called for data often does not exist,
thereby not capturing the situation of the poorest and most marginalised people, including
indigenous and minority groups, in official statistics and household and demographic surveys.
The Office of the High Commissioner for Human Rights points out in a report that “available
745
Dagmar Schiek, “Indirect Discrimination”, in D. Schiek, L. Waddington & M. Bell (eds.), Cases, Materials
and text on National, Supranational and International Non-Discrimination Law (Oxford: Hart Publishing, 2007)
323-475, at 323.
746
Ibid., at 475.
747
OHCHR, “Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra
note 243, at 9.
748
Ibid., at 10.
749
Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note 708, at 50.
750
OHCHR, “Frequently Asked Questions”, supra note 81, at 24. The importance of disaggregating data cannot
be overemphasized, according to the High-level task force on implementation of the right to development, see
the report “The Right to Development and practical strategies for the implementation of the Millennium
Development Goals, particularly Goal 8”, adopted 2 November 2005, UN doc. E/CN.4/2005/WG.18/TF/CRP.1,
para. 22. On the issue of indicators, see Claire Naval, Sylvie Walter & Raul Suarez Miguel (eds), “Measuring
Human Rights and Democratic Governance”, 9 OECD Journal on Development (2008), at 165. Available at
http://www.paris21.org/sites/default/files/Metagora-final_EN.pdf, visited 20 September; Siobhán McInerney-
Lankford and Hans-Otto Sano, Human Rights Indicators in Development: An Introduction (Washington, D.C.:
The World Bank, 2010).
114
data mostly remain at too aggregated a level and indicators frequently measure only “average”
progress and hence hide patterns of discrimination, inequality and disparities in outcomes.”751
Although there are many legal details around equality and non-discrimination, both in
international human rights law and national equality legislation, this particular human rights
principle is quite straightforward, at least in theory. What kind of operational implications it
has for development efforts can of course be debated, but there seems to be some consensus
that the principle implies that priority should be directed towards those suffering
discrimination and disadvantage in any given context, especially the poorest of the poor and
groups suffering multiple discrimination, such as rural women of an ethnic minority.752 The
Nepal-Finland cooperation project called Rural Village Water Resources Management can be
mentioned as an example. Non-discrimination is here seen as requiring a focus on the most
marginalised and vulnerable to exclusion and discrimination, inter alia, women, children,
inhabitants of (remote) rural and deprived urban areas, and indigenous groups. In order to
address the discrimination that these groups face in the area of water management, “positive
targeted measures may have to be adopted”.753
Women as a group often suffer discrimination and are a popular ‘target group’ in development
efforts. Some argue that a rights approach helps avoid the pitfalls that are attached to an
abstract and often depoliticised notions of ‘gender’, which have made ‘women’ as a category
visible but not helped in making equality real. Human rights approaches keep the end output –
guaranteed rights for all – in constant focus.754 It is here that human rights discourse may add
value: in redirecting focus on non-discrimination as the basis on which to demand equality
and justice for women as rights-holders.
Surprisingly, a review of an overview of five of the most commonly applied gender analysis
frameworks and tools reveals that discrimination is not a common focus of gender analysis.
Issues such as how the planned activity impacts on men’s and women’s control and access
over resources, time, and other socio-cultural factors, including changes in social roles and
status, are analysed. It is only in the Women’s Empowerment Framework by Sara Hlupekile
Longwe where equal access to the factors of production by removing discriminatory
provisions in the laws is highlighted.755
751
Office of the High Commissioner of Human Rights, “Human Rights and the Millennium Development Goals:
A review of Country Strategies and Reporting”, New York: 2010, at 28. Available at http://www.ohchr.org/
Documents/ Publications/HRAndMDGsInPractice.pdf, visited 18 January 2012.
752
OHCHR, “Frequently Asked Questions”, supra note 81, at 24. See also Twomey, “Human Rights-Based
Approaches to Development”, supra note 41, at 54; Hansen and Sano, “The Implications and Value Added of a
Rights-Based Approach”, supra note 708, at 50. Note that the Common Understanding is not linking non-
discrimination to focus on the most vulnerable.
753
“Questionnaire by Independent Expert on the issue of human rights obligations related to access to safe
drinking water and sanitation”, Contribution from the Rural Village Water Resources Management Project,
Nepal – Finland, Geneva, 2010, at 7. Available at http://www2.ohchr.org/english/issues/water/iexpert/docs/
questionnaires2010/Nepal_Finland_Cooperation_Rural_village_water_resources_management.pdf, visited 14
May 2012.
754
Joanna Kerr, “From ‘Opposing’ to ‘Proposing’: Finding Proactive Global Strategies for Feminist Futures”, in
Joanna Kerr et al (eds), The Future of Women’s Rights (London: Zed Books, 2004) 14-37, at 25.
755
Gender Analysis Framework, available at http://www.devtechsys.com/gender_integration_workshop/
resources/review_of_gender_analysis_frameworks.pdf, visited 20 October 2011.
115
Non-discrimination in ‘good development’ and human rights approaches: Vulnerable to
what?
In development and humanitarian operations, the principle of non-discrimination is linked to
the impartiality requirement whereby humanitarian operations cannot be biased in favour of a
particular religious, political, social or other group.756 Therefore, this principle is visible in
identification and selection of ‘beneficiaries’, in aid targeting. Often equality and non-
discrimination are equated with providing services for ‘vulnerable groups’ such as women
and children.757 In order to establish the needs among the target population, a needs-
assessment is usually carried out. This exercise is usually carried out by experts. As an
example of the instructions these experts follow the WFP’s guidelines on Comprehensive
Food Security & Vulnerability Analysis can be mentioned. This tool is “designed to
understand and describe the profiles of food-insecure and vulnerable households”. In this
context, vulnerability is not linked to the possible discrimination experienced by the
individual or group, but is instead linked to other criteria, such as income. “Looking at
household expenditure and income, the analyst is able to determine which are the most
vulnerable households and what risks (drought, flood, pest, insecurity) will affect them the
most.”758 Naturally, other assets than income are also taken into account, and this information
is collected separately for men and women.759
The FAO uses a vulnerability analysis that aims at identifying people at risk of becoming food
insecure or malnourished. Vulnerability is here about exposure to one or more risk factors and
the capacity to withstand the effects of a specific risk or risks. Vulnerable or highly vulnerable
are those people or households that have little or no capacity to safeguard their access to food,
even when confronted with a minimal risk factor.760 In the vulnerability assessment,
discrimination experienced by people is not a factor that is analysed. Nevertheless, the FAO
claims that targeting of groups that are vulnerable to food insecurity is essential in rights-
focused approaches: “these approaches involve establishing transparent and non-
discriminatory eligibility criteria.” The purpose of the vulnerability analysis is to ensure that
“all those in need are included in actions to reduce food insecurity and vulnerability”.761 In
this case, vulnerability assessment is about identifying needs and making sure there is no
discrimination in the targeting process – but less about using discrimination and
marginalization as a lens for analysis. Focus is not on those who are most marginalised or
vulnerable to discrimination and exclusion, but on those who are vulnerable to food insecurity
or malnourishment. These examples show how differently ‘vulnerability’ can be defined in
development work.
The point here is that when the human rights principle of non-discrimination and equality is
used as a lens for analysis this can potentially add something to the kind of analysis and
assessment usually carried out in good development practice. The focus should be more on
finding out who is marginalised and vulnerable to exclusion and discrimination than who is
vulnerable to food shortages, worsened by circumstances such as droughts. The answer might
be that the same individuals and groups are experiencing both discrimination and food
756
Lorenzo Cotula and Margaret Vidar, The Right to Adequate Food in Emergencies (Rome: FAO Legislative
Study 77, 2003) at 49.
757
See Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 17.
758
World Food Programme, “Comprehensive Food Security & Vulnerability Analysis Guidelines”, January
2009, at 31. Available at http://www.wfp.org/content/comprehensive-food-security-and-vulnerability-analysis-
cfsva-guidelines-first-edition, visited 14 May 2012.
759
Ibid., at 34.
760
FAO, Methods to Monitor, supra note 697, at 63.
761
Ibid., at 63.
116
insecurity, but the question is different. Therefore, when the question as to why is there
discrimination and what can be done to address it is added to the analysis and the affected
people are actively involved in the inquiry, this can potentially be the first step to change the
situation (agency) in addition to mitigating hunger through providing for needs for a period of
time.
Concluding remarks on non-discrimination
The usual way of working with the principle of non-discrimination in human rights
approaches to development is to focus on the most vulnerable individuals and groups.
However, a short analysis of how vulnerability is defined in work that identifies itself as
human rights-based, reveals that vulnerability assessment is very much like that in ‘good
development practice’, i.e., about identifying needs and making sure there is no
discrimination in the targeting process. The possible added value that a ‘human rights lens’
can bring is to focus on identifying the individuals and groups who are vulnerable to
discrimination and exclusion. Disaggregated data is therefore of high importance – but seldom
exists in reality. For example, human rights discourse may in some cases add value through
redirecting focus on non-discrimination as the basis on which to demand equality and justice
for women as rights-holders. Focusing on women as rights-holders naturally also leads to an
analysis of the lack of equality.
2.4.5 Accountability
Introduction and background to the accountability discourse
McInerney-Lankford points out that it is problematic that there are two parallel accountability
frameworks, that of development cooperation, such as the Paris Declaration on Aid
Effectiveness (2005), and that of the legal human rights framework. The same countries that
are held mutually accountable as donors and partners by the Paris Declaration, are also
accountable for human rights that are “directly relevant to, and potentially impacted by, [aid]
harmonization efforts.”762 Another challenge is that the accountability propounded through
development frameworks is not of equal value as the legal accountability under human rights
law. Accountability through development frameworks is built on principles, political
commitments, and policy frameworks rather than binding legal obligations under public
international law.763 It is the value of these binding legal obligations that makes the human
rights framework so attractive from an accountability perspective. Lack of accountability for
human rights obligations as well as for development policy and practice is a challenge in most
countries of the world, and more accountability mechanisms and processes are seen as the
solution.
Struggles by the poor to hold the powerful to account is a key issue behind many conflicts.764
“In most countries around the world, citizens know little about how much money their
government has at its disposal, where that money comes from, and how it is managed and
accounted for.” What further diminishes the sense of accountability to citizens in Sub-Saharan
762
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 74-75. Quote from page 75.
763
Ibid., at 74-75.
764
Peter Newell and Joanna Wheeler, “Rights, Resources and the Politics of Accountability: An Introduction”, in
Newell & Wheeler (eds), Rights, Resources and the Politics of Accountability (England: Institute of
Development Studies, 2006) 1-36, at 1.
117
Africa for public revenues is that a relatively large proportion of government revenues come
from international aid and the export of primary resources (rather than tax revenues).765
In order to address these kinds of accountability gaps, specific reforms are called for whereby
officials must explain, i.e., ‘account’ for their actions (actions should be ‘transparent’); so that
officials ‘take responsibility’ for their actions; so that voters hold elected officials to account
through elections; and so on.766 We can say that accountability generally refers to holding
actors responsible for their actions.767 As we will see below, there are many ways to do this.
The concept ‘accountability’ has assumed a central place in contemporary development
discourse, partly due to increasing attention to the idea of ‘good governance’.768 The logic to
support an institutional environment for ‘good governance’ is that certain conditions underpin
the ability of governments to be accountable (supply-side conditions) and the ability of
citizens and civil society to hold governments accountable (demand-side conditions).769
Therefore, traditionally both human rights and development discourse have called for
accessible, transparent and effective accountability mechanisms at all levels.770 With regard to
operational aspects of support to good governance in aid, donors tend to emphasise good
governance as primarily linked to institutional development and to reform of administrative
procedures. This means that the executive branch of government should be accountable for its
actions, the bureaucracy should be of high quality, the legal framework should be appropriate
to the circumstances, policy-making should be open and transparent so that citizens can have
input in the decision-making process, and civil society should be strong so that it can
participate in public affairs.771
Newell and Wheeler are of the opinion that the association between accountability and good
governance, in the technical way described above, has meant that “the politics of
accountability has been reduced to questions of state reform.” In their book, they show that
accountability cannot be achieved through institutional reform alone, although it naturally is a
crucial aspect of improved accountability.772 They claim that when accountability is framed as
a problem of institutional engineering, legal reform, and better accounting, what often follows
is a denial of the political and historical context of accountabilities by which people make
sense of rights and obligations.773 The empirical research for this thesis supports the fact that
matters of institutional reform are far from the day-to-day reality when demanding
accountability from power holders in struggles over resources and services.
765
Mary McNeil and Carmen Malena, “Social Accountability in Africa: An Introduction”, in McNeil & Malena
(eds), Demanding Good Governance (Washington: The World Bank: 2010) 1-22, at 7.
766
Rob Jenkins and Anne Marie Goetz, “Accounts and Accountability: Theoretical Implications of the Right-to-
information Movement in India”, 20 Third World Quarterly (1999) 603-622, at 607.
767
Peter Newell, “Taking Accountability into Account: The Debate So Far”, in Peter Newell and Joanna
Wheeler (eds), Rights, Resources and the Politics of Accountability (England: Institute of Development Studies,
2006) 37-58, at 40.
768
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 1.
769
McNeil and Malena, “Social Accountability in Africa”, supra note 765, at 5.
770
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
771
Hans-Otto Sano, “Good Governance, Accountability and Human Rights” in H-O. Sano & G. Alfredsson
(eds), Human Rights and Good Governance (The Hague: Martinus Nijhoff Publishers, 2002) 123-146, at 131-
132.
772
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 1.
773
Ibid., at 21.
118
Different forms of accountability
In recent years, aid and development agencies have funded a large number of anti-corruption
commissions, auditors-general, human rights machineries, and legislative public accounts
committees. These are state agencies that monitor the arms of the state, and are called
institutions of ‘horizontal accountability’. ‘Vertical’ forms of accountability include both the
individual citizen’s electoral choice and the collective forms of pressure by civil society
organisations.774 Both vertical and horizontal accountability are dimensions of political
accountability. The fact that rulers explain and justify actions to the ruled traditionally
distinguished a democratic society from a tyrannical one. Today, with the growth of
bureaucracies, the lines of political accountability have become increasingly blurred and the
mechanisms of political accountability have grown.775 For example, the Paris Declaration on
Aid Effectiveness underlines the importance of the role of parliaments in scrutinizing budget
and policy proposals. Parliamentary committees provide a further channel for engagements
with parliamentarians in the role of reviewing legislations, budgets and policies.776
Traditionally, financial accountability has been important in development cooperation. This is
a less political form of accountability concerned with inputs, outputs and outcomes,
monitoring expenditure and making sure that the processes are efficient.777 According to the
Paris Declaration, partner countries commit to strengthening public financial management
capacity and taking leadership of the public financial management reform process.778
Another accountability framework that is often supported by donors is legal and
constitutional accountability that is assured by the judiciary. The judiciary is entrusted with
the task to ensure that politicians and officials do not exceed their legal authority.779 From a
human rights perspective, judicial accountability is key. In countries where, for example, the
right to food or related rights such as the right to social security have been incorporated into
the constitution or other national legislation, this gives citizens an opportunity to challenge
legislation and policy through judicial systems.780 In addition, quasi-judicial accountability
mechanisms, including independent bodies established to advance and defend human rights,
such as national human rights institutions and ombudspersons,781 promote accountability for
human rights failure. Moreover, international accountability processes, such as quasi-judicial
processes for reviewing governments’ implementation of ESC rights, including the
Committee on Economic, Social and Cultural Rights and special rapporteurs,782 are important
components of human rights accountability mechanisms. Recently there has also been
developments within private sector accountability that has international relevance, e.g. the so
called Ruggie principles on business and human rights.783
774
Anne Marie Goetz and Rob Jenkins, “Hybrid Forms of Accountability: Citizen Engagement in Institutions of
Public-Sector Oversight in India”, 3 Public Management Review (2001) 363-383, at 364. See also, Larry
Diamond et al, “Introduction”, in Andreas Schedler et al. (eds), The Self-Restraining State: Power and
Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999) 1-9, at 3.
775
Newell, “Taking Accountability into Account”, supra note 767, at 45-46.
776
The Paris Declaration on Aid Effectiveness, 2005. See Ferguson, “Linking Human Rights and Aid
Effectiveness”, supra note 706, at 36.
777
Newell, “Taking Accountability into Account”, supra note 767, at 50.
778
The Paris Declaration on Aid Effectiveness, 2005, at 15.
779
Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 366.
780
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 40.
781
Ibid., at 40-41.
782
Ibid., at 41.
783
Report of the Special Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, John Ruggie, UN doc. A/HRC/17/31, 21 March 2011.
119
Rights-oriented development discourses, in which there can be distrust in the processes of
institutional engineering and judicial processes often support social accountability. This form
of accountability explores citizen action, aimed at over-seeing political authorities, as a way
of redefining the relationship between citizens and their elected representatives.784 Social
accountability is the direct accountability relationships between citizens and the state. In
practical terms, this form of accountability refers to a broad range of actions and mechanisms
(beyond voting) that citizens can use, such as monitoring public budgets, participation in
budget formation, citizen report cards on service delivery, and social audits, to mention a few
examples. In order to enhance social accountability an array of approaches, strategies, and
methods have been used by a wide range of actors including citizens, civil society
organizations, communities, government agencies, parliamentarians, and the media.785 Social
accountability is most often used in service delivery, in efforts to inform citizens and create
channels for them to use information to hold service providers accountable.786 In order for
social accountability to work it requires transparency and right to information, as well as
opportunities to use the information, i.e. participation and redress mechanisms. These can be
formal or informal channels to express dissatisfaction as well as complaint channels within
government agencies, independent redress institutions, redress mechanisms within
development programmes, and courts.787 (I will return to the role of courts in the next
section.)
Social accountability tries to capture voices at the local level. One challenge is the low level
of resources usually available at the local level. This is related to the fact that if the central
government is not meeting its obligations in channelling resources for socioeconomic rights to
the local level (as part of decentralisation) social accountability efforts remain ineffectual
unless they also target the central government. An unexpected benefit of social accountability
mechanisms might be that they create opportunities for actors to have a dialogue regarding the
content and meaning of human rights, and obligations, in their lived realities. This requires
that the agenda is open enough and that there is some awareness of the idea of rights and
duties.
Social accountability as well as other accountability mechanisms in development can be high
jacked by patrimonial systems and local elites to serve their agendas, or they can serve the
agendas of development agencies. When unmasking the agenda behind different approaches
to accountability one can ask questions such as: what is accountability for? (i.e., what broader
political ends does it serve?); who is it for (i.e., who benefits, who formulates those claims?);
how is it practiced? (i.e., through what means and processes?); where is it practiced? (i.e., at
what levels of political decision making?)788 Empirical assessment of which accountability
strategies work, when and for whom789 can contribute to making context-specific
accountability models, promoting stronger position for rights-holders.
784
Newell, “Taking Accountability into Account”, supra note 767, at 47-48.
785
McNeil and Malena, “Social Accountability in Africa”, supra note 765, at 6.
786
World Bank, World Development Report 2004: Making Services Work for Poor People (Washington: The
World Bank, 2004); Presentation by Dena Ringold, “Citizens and Service Delivery: Assessing the Use of Social
Accountability in Human Development”, Helsinki, 5 October 2011.
787
Dena Ringold, Alaka Holla et al, Citizens and Service Delivery: Assessing the Use of Social Accountability
Approaches in the Human Development Sector (Washington, D.C.: The World Bank, 2012).
788
Newell, “Taking Accountability into Account”, supra note 767, at 37-38.
789
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 3.
120
Accountability in human rights approaches to development
In ‘good development programming’ accountability flows from the implementing agency to
the funding agency,790 despite the fact that the Paris Declaration on Aid Effectiveness talks of
‘mutual accountability’.791 The strongest accountability relationship in aid processes is still
that of recipient governments to donors. ‘Mutuality’ tends to be interpreted as meaning that
partner countries prove, to the satisfaction of donors, that they have fulfilled their
commitments.792 (This is not changed by human rights approaches, as we will discuss later in
this chapter.)
What does change through human rights-based approaches is that new lines of accountability
emerge, such as government to target group, through the mobilisation of rights-holders.793
Human rights-based approaches establish the accountability-requirement within a framework
of specific human rights entitlements and corresponding obligations.794 This approach implies
the accountability of those with duties and obligations.795
Accountability is therefore often seen as the ‘lynchpin’ of the human rights framework: it
aims at enabling citizens to claim their rights and ensuring governments and other actors to
implement their responsibilities. Transparency is argued to be essential because without it
people and organisations cannot access information needed to hold power-holders to
account.796 Thereby, we return once again to good governance. On the relationship between
human rights and accountability, Sano observes that human rights can be seen as principles
against which good governance programmes are checked or human rights can enter as specific
measures and laws promoted for enhancing popular participation to promote accountability.797
From both perspectives, the aim of accountability can be seen as enhancing a process of
reviewing the performance of the government and other duty-bearers against their human
rights obligations.798 (New lines of accountability explored in human rights-based approaches
often take the form of institutionalized local monitoring groups.799)
Human rights discourse has traditionally focussed on the legal and judicial aspects of
reviewing the performance of duty-bearers. Darrow and Tomas point out that mechanisms of
redress need not be limited to, but should include, judicial mechanisms.800 The argument has
been that for accountability to be effective, it needs to be demanded801 and have some kind of
recourse or remedy mechanism, including rehabilitation, compensation, punitive sanctions, as
790
For examples of NGOs being accountable to their donors rather to their members, see Hans-Otto Sano,
“Making Rights Work for the Benefit of the Poor and Marginalized: Assessing the Impact of CARE’s Rights-
Based Work in South-Western Uganda”, Danish Institute for Human Rights, 2010, at 6-7; see also J.P. de
Campos Guimarães, “Participatory Approaches to Rural Development and Rural Poverty Alleviation”, Working
Paper, UN Economic and Social Commission for Asia and the Pacific, 2009, at 21. Available at
http://www.unescap.org/pdd/publications/poverty_and_development/participatory_rural.pdf, visited 10 May
2012.
791
“Donors and partners are accountable for development results”, see Paris Declaration on Aid Effectiveness,
2005, paras. 47-50.
792
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 35.
793
See Sano, “Making Rights Work for the Benefit of the Poor”, supra note 790, at 6-7.
794
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
795
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 495.
796
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18.
797
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 133.
798
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18.
799
For example in the work of CARE Uganda, see Sano, “Making Rights Work for the Benefit of the Poor”,
supra note 790, at 9.
800
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 512.
801
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
121
well as prevention of harm through changes in policies and practices or guarantees of non-
repetition.802 It is often underlined that effective enforcement mechanisms and the capacity to
punish is an integral part of accountability. Illegal behaviour calls for legal sanctions;
demonstrated abuses such as corruption or human rights violations, must be punished,
otherwise there is no rule of law and no accountability.803
The human rights framework itself incorporates national, regional, and international judicial
and other accountability mechanisms for reviewing the human rights obligations of
governments. These include UN treaty monitoring bodies and special rapporteurs at the
international level; human rights courts and commissions at the regional level. At the national
level, judiciary and national courts, national human rights commissions and ombudspersons,
administrative monitoring and review processes804 have roles in monitoring of adherence to
human rights.
Broadly speaking, ‘legal human rights-based approaches’805 typically focus on developing
laws, policies, institutions, administrative procedures and practices that can deliver
entitlements, respond to denial and violations and ensure accountability.806 This kind of work
is largely carried out with the support of donors and international agencies. UN agencies seem
to focus on the legal aspects of accountability, as the Common Understanding promotes
judicial mechanisms as a solution when states and other duty-bearers fail to comply with legal
norms in human rights instruments: “aggrieved rights-holders are entitled to institute
proceedings for appropriate redress before a competent court or other adjudicator in
accordance with the rules and procedures provided by law.”807 This is a basic principle in
human rights law, and taking non-compliance with human rights norms seriously in
development programming is naturally welcome (especially if this concerns also
accountability for human rights impact by actions involving donor states). We should,
however, keep in mind that accountability in the context of human rights-based development
approaches has diverse meanings and many approaches by civil society and marginalised
groups apply other methodologies for holding duty-bearers to account, e.g. social
accountability in its various forms. Advocacy and mobilisation campaigns are important
features of rights-based strategies to achieve greater accountability, and sometimes legal
strategies are part of the ‘tool box’, sometimes not. Often social and political mobilisation is
critical for ensuring that court judgments are enforced.808
Authors in favour of legal approaches often point out the value of human rights law offering a
normative baseline mandating non-regression and a principle of ‘do no harm’.809 (‘Do no
harm’ is not mentioned in the Common Understanding, despite its legal approach to
accountability.) The OECD DAC argues that the “international human rights framework can
provide a standard against which to assess aid effectiveness and ensure that changes instituted
in the delivery and management of aid will support, or at least not undermine, the realisation
802
See Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie, UN doc. A/HRC/17/31, 21 March 2011,
para. 25.
803
Anderas Schedler, “Conceptualizing Accountability”, in A. Schedler et al. (eds), The Self-Restraining State:
Power and Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999)13-28, at 16-17.
804
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18-19; see also OHCHR,
“Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra note 243, at
17.
805
This is my concept and not that of the authors Darrow and Tomas.
806
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 512.
807
See paragraph describing Accountability and Rule of Law in the Common Understanding, supra note 50.
808
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 19.
809
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 71.
122
of human rights”.810 For this to work in practice, it would take strong accountability
mechanisms so that development policy and practice of both donor states, multilateral
agencies, and recipient states is monitored and assessed from a human rights perspective.
Considering that the treaty monitoring mechanisms within the UN system seldom even refer
to development policy and practice811 this would require a considerable modification in
current practices.
‘Do no harm’ should naturally be taken seriously in ‘good development practice’ as well as in
human rights-based approaches. Respecting human rights and preventing harm that causes
lower human rights enjoyment because of development activities can be seen as being part of
duty-bearers’ negative obligations. However, we should not forget accountability for positive
obligations. The process of how rights can be realised is important in the accountability
discussions that focus on the enforceability dimension of accountability. According to Newell
and Wheeler, it is in this context that we encounter the limits of (over)-reliance on rights.812
At the level of development programming, promoting a stronger role for the human rights
legal accountability framework is not necessarily the only or most relevant role that the
human rights framework can play. Instead the act of identifying rights-holders813 (and their
entitlements) and corresponding duty-bearers (and their obligations) is what potentially raises
levels of accountability in the development process. Both positive obligations to protect and
fulfil a specific human right, and negative obligations to abstain from violations are to be
considered.814 But this does not mean that all development failures should be dealt with in
human rights treaty monitoring bodies, for instance. Instead it requires that human rights
impact assessment is applied to all development plans, policies, budgets, and programmes to
determine progress/failures in human rights terms.815 Explicit human rights reference in
development programming is a doorway to increased human rights accountability.
Who is accountable for human rights impact in development?
The question who has duties and obligations is of course relevant. We know that states have a
legal obligation to respect, protect and fulfil human rights and that they are accountable for
human rights implementation of the conventions they have ratified.816 We also know that the
Paris Declaration advocates mutual accountability, i.e., that donors and partners are
accountable for development results. (Paris Declaration also proposes commitments to donors
that they e.g. refrain from requesting the “introduction of performance indicators that are not
consistent with partners’ national development strategies.”817) However, despite the mutual
accountability principle, it is commonly held that aid accountability is one-way,818 and donor
obligations are not often on the agenda.
What sort of accountability for human rights impact can be expected from international
organisations and donor states? It is clear that the nature of political change in weak states in
810
OECD DAC Update, “Human Rights and Aid Effectiveness”, April 2007, at 2. Available at
http://www.oecd.org/dataoecd/15/12/38713028.pdf , last visited 18 January 2012.
811
On the UN treaty monitoring and MDGs see Philip Alston, “Ships Passing in the Night: The Current State of
the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals”, 27
Human Rights Quarterly (2005) 755-829.
812
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 7.
813
Called ‘claim-holders’ by Darrow and Tomas.
814
See Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 511.
815
Twomey, “Human Rights-Based Approaches to Development”, supra note 41, at 54.
816
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 137.
817
Paris Declaration on Aid Effectiveness (2005), para. 45.
818
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, 42.
123
the South is often heavily influenced by both bilateral donors and by UN development
agencies. This is the case especially in transitional societies where civil society groups have
received new influence, often thanks to support and resources from the international
community. Donors and international agencies view these civil society groups as agents of
democratisation, and they willingly take that role, but often they alone carry the risk of
challenging authoritarian or transitional regimes and power-holders. It is not surprising that
NGOs and local non-state actors raise demands concerning consistency of policy and human
rights accountability of the very organisations and donors who are driving the agenda to
reinforce participation and human rights through the operations of these local actors.819 One
can argue that Western donors and international organisations involved in democratisation,
good governance, and human rights promotion certainly share a responsibility with national
states both for respecting human rights themselves and for contributing positively to human
rights fulfilment.820 Among the development community there is, however, not much
awareness or conscious effort to take such responsibility seriously.
In human rights law, the question of extraterritorial obligations has gained more attention
recently. These obligations pertain to acts of a state which have human rights effects outside
the territorial jurisdiction of that state. In this context it is important to make a distinction
between an obligation to cooperate internationally for development and an obligation to
provide development assistance.821 Many donors have traditionally been cautious in the right
to development debate, specifically for the reason that it has been interpreted by some as
creating a right to receive international assistance.822
There is a general unwillingness among donors to take on international obligations, and
Cornwall and Nyamu-Musembi suggest that international development agencies use the
language of rights-based approaches to development without intending to bear the entirety of
consequences that flow from it. They see that the lack of possibility of accountability
mechanisms in the international development assistance structure is undermining the whole
idea of aid recipients having been transformed from ‘passive beneficiaries’ to ‘rights-
holders’.823 This is not only a legal question, but a practical problem that undermines the
credibility of human rights-based approaches to development assistance.
Struggle for accountability
Authors who view struggles over rights and accountability in the context of wider social and
political transformation (compared to those concerned with narrow ‘legal human rights
approaches’) put accountability into a complex relationship between rights, resources and
accountability, i.e., the relationship between the state and its citizens.824 Newell and Wheeler
remind us that accountability is not an end in itself. Instead, it is at best a means to achieving a
wider set of goals that involves deeper social and political change. This point is often
forgotten in technocratic and target-driven approaches to accountability.825 For example,
struggles over resources and efforts to realise rights such as housing or water concerns the
relationship between rights and accountability. Rights become tools of accountability, where
819
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 140.
820
Ibid., at 141.
821
Wouter Vandenhole, “EU and Development: Extraterritorial Obligations under the International Covenant on
Economic, Social and Cultural Rights”, in Salomon, Tostensen and Vandenhole (eds), Casting the Net Wider:
Human Rights, Development and New Duty-Bearers (Antwerp: Intersentia, 2007) 85-106, at 85-86.
822
See Piron, “Learning from the UK”, supra note 692, at 15.
823
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1433.
824
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 4.
825
Ibid., at 13.
124
marginalised groups use rights claims around key resources in a struggle for increased
accountability from state, private, and civil society actors.826
Accountability is not just about answerability as to results, actions, and non-actions but also
about delivering enforceability of rights. Rights, or rather the lack of their practical
implementation, are at the heart of mobilisations for accountability.827 The aim of social
movements that struggle for basic rights is often to increase the level of responsiveness and
accountability of public institutions.828 Proposals for change can be made, but if they are met
with a blank wall of unresponsiveness by duty-bearers the lives of rights-holders will not
improve.829 The responsiveness and accountability relationship is usually seen to function
when bureaucracies involved in service delivery are responsive to citizen needs, and
accountable to elected officials.830 In these struggles, accountability is not apolitical and the
judicial proceedings are not necessarily part of the process.
In addition to this, judicial activism is an interesting phenomenon. In India Public Interest
Litigation (PIL) is one example that is very relevant when exploring the role of rights and
accountability in development related claims. In a number of decisions by the Supreme Court
of India, it was established that the judiciary is morally required and constitutionally
mandated to increase its responsiveness to citizen requests for investigative action concerning
specific government agencies, including service-delivery ministries. In the form of PIL,
citizens enter the horizontal process of in-depth monitoring of government, and as such it
represents an interesting case of hybrid accountability between the vertical and horizontal
axes. Individual citizens and activists groups become part of an official fact-finding process.
In India, PIL has legitimized the notion of direct citizen engagement with issues of executive
oversight. PIL has also attracted a lot of interest by social movements in adopting legal
processes, showing that it is possible for citizen-litigants to enter into legal-constitutional
accountability institutions, becoming active demanders of answerability in a forum that
carries the weight of enforceability. Most citizen-initiated approaches aim to achieve precisely
this combination of answers and sanctions.831As constitutional regimes vary widely from one
country to another, the Indian experience can naturally not be generalised. Moreover, the
experiences from India are not only positive. Litigation has often times been time consuming,
costly, relatively ineffective as compared to traditional mobilisation strategies,832 and there is
risk of depoliticising issues in the legal arena.
It is also important to be aware that, even in countries where there is judicial responsiveness
to social claims and the courts are able to influence the formal political process, the successful
826
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 5-6.
827
Ibid., at 7.
828
For a case study see Celestine Nyamu-Musembi, “From Protest to Proactive Action: Building Institutional
Accountability through Struggles for the Right to Housing”, in Peter Newell and Joanna Wheeler (eds), Rights,
Resources and the Politics of Accountability (England: Institute of Development Studies, 2006) 122-143.
829
Jo Rowlands, “The Right to be Heard: An Overview”, in Rowlands (ed.), Speaking Out: Case Studies on How
Poor People Influence Decision-Making (Oxfam GB, 2009) 1-10, at 6.
830
Nyamu-Musembi, “From Protest to Proactive Action”, supra note 828, at 136. On the other hand,
bureaucrats, auditors and judges are kept at a distance from citizens and politicians precisely to guard against too
much responsiveness to particular interests and influential social groups. However, in the name of ‘neutrality’
there are often policies and mechanisms in place that restrict public scrutiny and help to hide abuse of public
office for private gain. See Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 366-367.
831
Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 367-368.
832
Shylashri Shankar and Pratap Bhanu Mehta, “Courts and Socioeconomic Rights in India”, in Varun Gauri &
Daniel M. Brinks (eds), Courting Social Justice (Cambridge: Cambridge University Press, 2008) 147-182, at
177.
125
contestation of legal meanings cannot be automatically associated with social change.833 A
review of social rights cases in Colombia shows that the Constitutional Court went from
protecting individuals who were structurally marginalised from the market, to a protection of
particularly vulnerable groups and then to a general protection of the middle class groups that
were being affected by fiscal constraints. The Court started benefiting claimants who were not
structurally excluded from the market but occasionally affected by ‘market dysfunction’
resulting from the economic crisis. The author behind the review however thinks more
research is needed regarding the way in which law, legal language, and social movements
interact to “understand the complex relation between courts and social change better”.834
Concluding remarks on accountability
When human rights enter into development policies and practices, new accountability
relationships and frameworks emerge. There is stronger focus on the state-citizen relationship
compared to the donor-implementing agency accountability relationship that dominates in
‘good development discourse’. Naturally there are overlaps, and strengthening the
accountability of the executive in relation to citizens has been a goal in the good governance
agenda for a long time (driven by donors and international agencies in the name of
democracy, transparency and human rights).
In human rights-based approaches to development, the relationship between rights-holders
and duty-bearers is at the heart of demanding accountability. The act of identifying rights-
holders (and their entitlements) and corresponding duty-bearers (and their obligations)
potentially raise levels of accountability in the development process – and this is something
that can be done in development programming as well as in social activism. However,
international agencies tend to focus on the strengthening of legal accountability mechanisms,
through national legal and judicial reforms, leaving other forms of struggle aside. These ‘legal
human rights-based approaches’ focus on developing institutions and administrative
procedures that can deliver on entitlements and respond to violations, in the name of ‘good
governance’, and less on the link between accountability and popular participation.
In non-legal rights-based approaches, e.g. by social movements, and partly also the by the
World Bank in the area of social accountability,835 advocacy and mobilisation around issues
of the lack of practical implementation of services/rights are important aspects of the
enforceability and responsiveness dimensions of accountability. In some countries, judicial
activism also plays an important role in these broader struggles for accountability. When these
struggles are truly inclusive they can have effects greater than ‘winning the case’. However,
one has to be careful not to generalise the role of rights and the legal framework in
accountability struggles. The specific effects of a legal human rights discourse should be
studied in context as they can have diverse effects.
At the same time as there is a tendency to emphasise the legal aspects of accountability as
requiring national judicial and institutional reform, there is a tendency to neglect legal
accountability flowing from human rights treaties and binding both donors and recipient
countries. This is related to the question mark in the human rights accountability puzzle, i.e.,
the obligations and responsibilities assumed by international organisations and donor states.
833
Pablo Rueda, “Legal Language and Social Change during Colombia’s Economic Crisis”, in Javier A. Couso,
Alexandra Huneeus and Rachel Sieder (eds.), Cultures of Legality: Judicialization and Political Activism in
Latin America (New York: Cambridge University Press, 2010) 25-50, at 49.
834
Rueda, “Legal Language and Social Change”, supra note 833, at 31, 41 and 49.
835
See Ringold and Holla et al, Citizens and Service Delivery, supra note 787.
126
The silence on this issue among the concerned actors undermines the credibility of their intent
to strengthen human rights accountability in development.
Regardless of what form it takes, being able to hold institutions and other power holders that
affects one’s life to account is an important aspect and the subsequent principles are of
participation and empowerment.
2.4.6 Participation
Different perspectives on participation
Participation has long been accepted as a means to improve relevance and effectiveness of
programming, and also based on participation being an end in itself. However, ‘participation’
in development can mean different things depending on the context and the actors involved.
Participatory processes range from people participating by providing information to outside
‘experts’ to participating in decision making as genuine protagonists.836
Andrea Cornwall has written an excellent review and analysis of participation in development
policy and practice called Beneficiary, Consumer, Citizen: Perspectives on Participation for
Poverty Reduction. She recalls three distinct arguments made for participation in the 1960s
and 1970s. According to the first line of argument, development projects were seen to have a
better chance of success if people were involved more directly in them. Participation was
called for on the grounds of efficiency, effectiveness, and equity of access to benefits. The
second set of arguments had a very different origin. They arose directly from the struggles of
popular movement of the time for rights, recognition, and more equitable distribution of
resources. The vision was social change for self-determination and self-governance, and less
about institutions involving their users or clients in the design or delivery of programmes. The
third argument is casting participation as a mutual learning experience.837 In the first
perspective on participation, people participate as ‘beneficiaries’. They are invited to help
make contributions to interventions that are designed to benefit them, and their participation is
held to increase the effectiveness of these interventions. Participation is done for the people.
The second perspective on participation can be associated with broader struggles for
democracy and equity. Participation is by the people, and the aim is for them to gain rights
over and entitlements to resources.838 This perspective is close to issues of citizenship, which
are linked to rights-based approaches that claim participation as a political right, thereby
creating a political, legal and moral imperative for focussing on people’s agency.839 The third
perspective on participation calls for a closer relationship between those who work in
development practice and the people who are supposed to benefit from this practice.
Participation means working with people.840
Cornwall reminds us of what she calls “the ethos of self-reliance” of the 1980s, a kind of ‘do
it for yourself’ attitude in development that implied that beneficiaries became seen as
836
Lisa VeneKlasen, Valerie Miller et al., Rights-Based Approaches and Beyond: Challenges of Linking Rights
and Participation (Brighton: Institute of Development Studies, 2004, IDS Working Paper 235) at 5. Available at
http://www.ids.ac.uk/files/Wp235.pdf, visited 10 May 2012.
837
Andrea Cornwall, Beneficiary, Consumer, Citizen: Perspectives on Participation for Poverty Reduction
(Gothenburg: Sida Studies No. 2, 2000) 20-22.
838
Ibid., at 22.
839
See Gils Mohan and Sam Hickey, “Relocating Participation within a Radical Politics of Development:
Critical Modernism and Citizenship”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 59-74, at 70.
840
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
127
consumers, or ‘users and choosers’.841 Seeing ‘communities’ as ‘user and chooser’ can imply
that they are engaged in contributing labour, time, or cash to community development
projects, or they are involved in user committees, or they obtain the control for design,
delivery, and maintenance of projects. In the name of ‘participation’ communities are
achieving an increasing role in co-production and in self-provisioning and are thus assuming
many functions of the state. The state becomes “an enabling force by removing laws,
liberalising the economy and opening up access to wider range of services through the
encouragement of NGO involvement and private sector investment in basic service
provision.”842 Cornwall cites Vengroff (1974) as proof that arguments such as these have been
published. Vengroff made a case that self-help efforts can be used to delay the need for
allocation of government funds and divert local demands for development from the central
government to local initiative. This generates mass participation.843 That this is contrary to
human rights thinking is very clear. Human rights require a shift from beneficiary or
consumer to citizen and rights-holder. We will come back to the implications of this.
It can naturally be argued that this is merely an example of ‘bad participation’, in which those
with the power dictate the conditions of the ‘participation’. However, it is important to be
aware of the various understandings and meanings attached to ‘participation’ as defined in
development discourse.
When we come down to the practical level the whole business of participation becomes even
more complicated. Sometimes we can read in reports or policy statements that there has been,
or should be, ‘full participation’ and ‘participation by all stakeholders’. However, looking at
the realities on the ground this can prove to be virtually impossible. Therefore, implicit
choices about who participates are usually made also when the aim is ‘full participation’.
Methodology naturally plays a role here. A distinction can be made between approaches that
place greater emphasis on participation of representatives, i.e., those who speak on behalf of a
particular interest group, and those that aim at more direct democratic forms of participation.
Nevertheless, these boundaries tend to be blurred and pragmatism often leads to the
representation approach being included, in one form or the other.844
We need to be aware that development programmes can never function in a vacuum detached
from local struggles for power and resources, i.e., from the political sphere. However,
participatory approaches have been criticised for ‘depoliticising’ development by
incorporating marginalised individuals in projects that they are unable to question.845 It is
often assumed that participatory approaches are apolitical and non-confrontational since they
build upon an idea of finding consensus. Jenkins and Goetz point out that “in assuming
consensus, different perspectives can be silenced, a problem which has been observed with
regard to the subtle filtering-out of dissensus along gender and class lines.”846 This easily
happens when participatory monitoring and evaluation exercises come from outside the
community and the emphasis is on generation of information from the grassroots and less
841
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 71.
842
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 76.
843
Ibid., at 19. See also de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note
790, at 4-5 for historical background of ‘participation’ as a form of self-help.
844
Andrea Cornwall, “Unpacking ‘Participation’: Models, Meanings and Practices”, 43 Community Development
Journal (2008) 269-283, at 276-277.
845
Glyn Williams, “Towards a Repoliticization of Participatory Development: Political Capabilities and Spaces
of Empowerment”, Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to Transformation
(London: Zed Books, 2004) 92-107, at 93.
846
Rob Jenkins and Anne Marie Goetz, “Accounts and Accountability: Theoretical Implications of the Right-to-
information Movement in India”, 20 Third World Quarterly (1999) 603-622, at 614.
128
emphasis on direct confrontation between people’s knowledge and official accounts.
Participatory techniques are therefore often apolitical in their implicit assumptions that
information will flow ‘from the bottom up’.847 However, politics matter in development and
understanding how participation relates to power structures and political systems is crucial for
a more transformative approach.848
At the same time, we need to be realistic about the limitations of participation in development
programming. People struggling to satisfy daily needs of food and water are not necessarily
interested in attending workshops – or at least that is the assumption often made. Issues such
as functional literacy, analytical, organisational, and advocacy capacities can be challenging
and time-consuming. Under these circumstances it is tempting to involve civil society groups
that do not necessarily represent the poor and disadvantaged instead of direct participation of
the target groups.849 We see elites (chiefs, headmen, landowners, higher castes, the urban
educated) having prominent roles in new spaces created for participation; they represent and
articulate the needs of the poor and marginalised.850 Additionally, it is clear that perfect,
transformative, empowering participation is unattainable most of the time,851 especially in
top-down approaches. However, if these modernist development approaches have caused a
disjuncture between the ‘elite’ and the ‘grassroots’, participation could at least contribute to
building a common language between “the architects and recipients of development
programmes”.852
Human rights: Participation is a right
The trend of emphasising new forms of democratic practice, which build on more direct and
deliberative democratic traditions, broadening notions of political participation beyond the
politics of the ballot box, and an increasing attention to human rights in development are
factors that have contributed to a resurgence of interest in popular participation. Talk of
participation as a democratic right is once again becoming popular.853 In human rights-based
programming the starting point is that participation is a right854 enshrined in many human
rights conventions. This right is often violated. It is argued that fostering participation in
societal decision-making at different levels is an objective in itself. Greater participation is
both a necessary outcome and a necessary aspect of the development process.855 Participation
should be viewed as a process of fostering critical consciousness and decision-making as the
basis for active citizenship.856 This means that participation is first and foremost seen a
democratic principle that is relevant in all social, political, and economic decision-making –
not limited to a development project or programme.
847
Jenkins and Goetz, “Accounts and Accountability”, supra note 848, at 611, 613, 616.
848
de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 22.
849
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 510.
850
Cleaver, “The Social Embeddedness of Agency”, supra note 392, at 274.
851
de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 24.
852
Williams, “Towards a Repoliticization of Participatory Development”, supra note 845, at 101.
853
Andrea Cornwall, Changing Ideals in a Donor Organisation: ‘Participation’ in Sida (Sussex: IDS Working
Paper 317, January 2009) 17-18. Available at http://www.ids.ac.uk/files/dmfile/Wp317.pdf, visited 9 May 2012.
854
The relationship between participation and human rights was discussed already in the 1970s. See e.g.
Commission on Human Rights report by the Secretary-General on the international dimensions of the right to
development. UN doc. E/CN.4/1334, 2 January 1979.
855
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 494.
856
OHCHR, “Frequently Asked Questions”, supra note 81, at 26.
129
There are some donors that have this view on participation, for example Sida.857 The Swedish
Government’s White paper called The Rights of the Poor – Our Common Responsibility
(1996/97) argues for strategies that enhance the possibilities for the poorest people to take a
greater part in political life, especially at the local level of decision-making.858 (We should,
however, be aware that Sida is also struggling with translating their nice slogans into concrete
practice.)859 The driving force behind the arguments is, however, a belief that
“democratization, establishment of the rule of law, good governance and popular participation
in decision-making are declared to be the most important conditions for progress in the fight
against poverty”860 – rather than seeing participation as a value in itself.
This is not unique to Sida. In human rights discourse, participation is seen as a prerequisite
and starting point for making other claims, and that means fostering greater participation also
has utilitarian motives. The publication Claiming the Millennium Development Goals: A
Human Rights Approach points out that, participation is a fundamental element in achieving
economic, social, and cultural rights, as well as the right to development. Classic civil and
political rights (rights to vote, freedom of expression and association) must, furthermore, be
supported and it is essential to build strong democratic institutions and to consciously create
space for participation in MDG-related activities. This means, inter alia, increasing
transparency, and making information about policies and programmes accessible; creating
channels for participation by the poorest and most marginalised groups; and making human
rights awareness cross-cutting in all programmes.861 This is in itself not new for the
development agenda, the only new element is human rights awareness.
We can differentiate relationships that should be ‘participatory’, (or accountable or non-
discriminatory for that matter): (1) the relationship between the ‘beneficiary’ and the ‘project
management’; (2) that between the people as citizens and rights-holders and the different
power holders, i.e., government institutions, donors, corporations. Traditionally, human rights
have played a role in the latter relationship but as human rights enter into ‘programming’
through human rights-based approaches they increasingly also become relevant in projects,
although this process is certainly not always clear from the contradictions. When people are
enabled to represent and choose for themselves through ‘participatory development’ they will
not always support agendas of gender equality, democracy, and human rights. What
facilitators should do in these situations remain, for the most part, unresolved either in the
guidelines or operational practice.862
Kate Newman has observed in her research that there is in-built tension between participation
and a human rights-based approach which embraces a universal, legislative approach to
rights.863 If participants are asked, it might be that they do not prioritise working on the right
to education, which is the target of the organisation. There is a risk that the priorities and
perspectives of the local groups become over-shadowed by an approach focusing on a specific
857
The Swedish term ‘folkligt deltagande’ made its way into Swedish aid in the 1970s. See Cornwall, Changing
Ideals in a Donor Organisation, supra note 853, at 27.
858
SIDA, The Rights of the Poor – our Common Responsibility (Stockholm: Ministry for Foreign Affairs,
Government Report 1996/97: 169) at 36-37. Available at http://www.sweden.gov.se/content/1/c6/02/
04/08/ab9600e5.pdf, visited 15 May 2012.
859
See Cornwall, Changing Ideals in a Donor Organisation, supra note 853.
860
SIDA, The Rights of the Poor, supra note 858, at 85.
861
OHCHR, Claiming the Millennium Development Goals, supra note 725, 11-12.
862
Cornwall, Changing Ideals in a Donor Organisation, supra note 853, at 54.
863
Kate Newman, “Challenges and Dilemmas in Integrating Human Rights-Based Approaches and Participatory
Approaches to Development: An Exploration of the Experiences of ActionAid International”, 262-263. Doctoral
thesis, University of London, submitted November 2011.
130
human rights-based target. Participation may clash with organisational interests.864 It is
difficult for transformative participation to have pre-defined goals,865 as this goes against the
very idea of allowing the ‘beneficiaries’ to be in the driver’s seat. Moreover, transformatory
participation cannot simply focus on methodologies, but must look at ways of challenging
broader structures, and this requires political strategies.866
Cornwall points out that when ‘participation’ is used as a term to describe a ‘method’ or
‘mechanism’ that is limited to a project or programme, participation is something that is done
to or for people by outsider agencies.867 This is a very different view on participation
compared to one where participation is seen as a right and democratic principle. However, the
lines between the different participation practices in development have been blurred in recent
years when concerns with the relationship between citizens and the state has increasingly
become an issue on the development agenda, particularly in the move towards engaging
citizen participation in policy processes,868 such as Poverty Reduction Development Plans,
and strategies for decentralisation.869
The question is what the human rights perspective adds to participatory approaches, in
addition to giving legal legitimacy? As we have seen the development discourse has for
decades worked on strategies to increase participation on different levels and by different
groups, be it with limited success in practice. It is claimed that human rights-based
approaches can add value to existing participatory approaches by calling for attention to the
quality of the participation process.870 I agree that rights-based development can provide a
commitment to a qualitatively different form of participation so that citizens are facilitated to
exercise their right to participation in challenging and changing institutions that are important
for their lives.871
However, I am less certain that applicable human rights standards can provide a meaningful
‘participation checklist’ with key issues or preconditions that may need to be taken into
account.872 The problem with this argument is that human rights instruments and
interpretations tend to have a rather limited view on popular participation, concentrating more
on legal norms, judicial institutions and technicalities of elections and less on more direct
forms of participation. (Donors and international financial institutions have been accused of
operating with a narrow definition of democracy as multi-party elections which satisfy certain
formal criteria.873)
The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to take
part in the conduct of public affairs, to vote and to be elected at genuine periodic elections,
864
De Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 21.
865
Williams, “Towards a Repoliticization of Participatory Development”, supra note 845, at 102.
866
Mark Waddington and Giles Mohan, “Failing Forward: Going beyond PRA and Imposed Forms of
Participation”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to Transformation
(London: Zed Books, 2004) 219-234, at 220.
867
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 36.
868
Ibid., at 60.
869
Mikkelsen, Methods for Development, supra note 147, at 111.
870
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 506.
871
Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note 70, at 255-256.
872
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 507-508. See also OHCHR,
“Frequently Asked Questions”, supra note 81, at 26.
873
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 158.
131
and to have access, on general terms of equality, to public service in his country.874 The
Human Rights Committee has issued authoritative interpretations that give further guidance to
the question about participation. The Committee points out that ‘conduct of public affairs’ is a
“broad concept which relates to the exercise of political power, in particular the exercise of
legislative, executive and administrative powers.” All aspects of public administration, and
the formulation and implementation of policy at international, national, regional, and local
levels are covered.875 What forms participation should take is an issue outside the scope of the
General Comment. The General Comment mentions ‘direct participation’ once,876 and then
concentrates in detail on the different aspects of the rights related to elections. It does in fact
not pay attention to the issue of the quality of participation outside of elections in any other
way than noticing that “no distinction should be made between citizens as regards their
participation on the grounds mentioned in article 2, paragraph 1, and no unreasonable
restrictions should be imposed.”877
The ‘quality criteria’ for participation that is sometimes claimed to come from human rights
discourse has its origins in the Declaration on the Right to Development, which includes the
requirement that participation should be “active, free and meaningful”.878 This criteria is
included in the Common Understanding that goes along the lines of the Declaration on the
Right to Development, stating that active, free, and meaningful participation is an entitlement:
“Every person and all peoples are entitled to active, free and meaningful participation in,
contribution to, and enjoyment of civil, economic, social, cultural and political development
in which human rights and fundamental freedoms can be realized.”879 This indicates that the
UN agencies that are committed to using the Common Understanding as a starting point for
their work have set the level of ambition high. Participation is an entitlement, and the
participatory methods that are used should fulfil the ‘active, free and meaningful’ criteria. The
process is as important as the outcome, which is human rights realisation. However, as we
will see below, the narrow, legalistic approaches that are common in human rights work
corresponds uneasily with this ambition.
The human rights community is not very ‘participatory’
Lisa VeneKlasen et al. have identified differences between how development-focused
organisations and human rights-based organisations understand participation and rights. In
interviews with US based organisations the researchers found that there are diverse
interpretations of these concepts and the approaches applied to advance them vary
accordingly.880 Development organisations and social movements have been pioneers in
approaches to participation. In the early stage of this development, the organisations saw it as
a means to improve programme design and implementation by using local people’s
experiences. Gradually, it was seen as a method to build capacity and, more recently, as a way
to engage in policy change. Until recently, there had been little recognition of the role of
participation in the work of most human rights organisations. Focus has been on the
874
Art. 25 of the International Covenant on Civil and Political Rights (adopted on 16 December 1966 and
entered into force on 23 March 1976). The Convention on the Elimination of All Discrimination of Women and
the Convention on the Rights of the Child are also relevant.
875
Human Rights Committee, General Comment No. 25 (1996), UN doc. CCPR/C/21/Rev.1/Add.7, para. 5.
876
“Citizens may participate directly by taking part in popular assemblies which have the power to make
decisions about local issues or about the affairs of a particular community and in bodies established to represent
citizens in consultation with government.” Ibid, para. 6.
877
Human Rights Committee, General Comment No. 25 (1996), supra note 875, para. 6.
878
Article 3 of the Declaration on the Right to Development, adopted on 4 December 1986, A/RES/41/128.
879
Common Understanding, supra note 50.
880
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 12.
132
mechanics of legal and policy strategies. Another common strategy involved gathering
information from victims of human rights violations. Participation was in this case about
people providing data as informants. With the establishment of national organisations they
gained a greater role as informants and partners. Methodologically, many of the international
as well as local human rights groups have focussed on ‘awareness raising’ concerning laws
and legal procedures rather than more participatory learning processes of helping people to
analyse problems and identify solutions that promote rights in a local setting. Rights groups
often use a discussion of rights as an entry point into communities, instead of starting with
people’s daily problems while ‘good development practice’ emphasises that it is essential to
start where people are and build an explicit vision of social change. The narrow, legalistic
approaches in human rights work have contributed to a ‘crisis’ in rights methodology evident
in the interviews carried out for the research by VeneKlasen and her colleagues. While
working with laws and legal systems is critical, it has become clear that the previous
approaches usually failed to expand the scope of rights or strengthen accountability and
capacity to deliver resources and justice.881
Harri Englund has analysed civic education on human rights and democracy carried out by the
EU funded project National Initiative for Civic Education (NICE) in Malawi. His findings
exemplify the challenges that human rights awareness raising has brought about in the area of
participation. NICE was a substantial project in terms of coverage: its endeavour was to have
an office in every district and its coverage extended to villages and townships through a
network of volunteers. This meant that its coverage of the country was virtually equal to, if
not greater than, the state. People in NICE’s professional staff emphasised their association
with the ‘grassroots’ but the fact is that NICE was a transnational project that, according to
Englund “participated in governing Malawi with resources that in many cases exceeded those
of government departments.”882 Despite the rhetoric of ‘local ownership’ the officers and
volunteers of NICE created a sense of belonging to en exclusive community of human rights
experts. Englund analyses the many subtle ways this was done in his book. I will not relate the
details here but the main conclusion is that there was a distinction between NICE and the
grassroots.883 NICE was an organisation of quasi-professionals, mostly consisting of young
people, who were taught to think of themselves as separate from the grassroots. They
identified with the organisation rather than with the concerns of the grassroots. This was seen
as imperative from the perspective of sponsors and managers, who could not allow NICE to
appear to be challenging the prevailing political relationships in the country.884 Despite
emphasis on ‘participation’ ‘the grassroots’ did not choose what issues were important for
them, and adjust the organisation’s work accordingly, but it remained an abstract principle,
serving top-down managerialism.
Another feature of NICE was its apolitical and nonpartisan nature, which corresponds
uneasily with participation. NICE held public meetings on five thematic areas: local
democracy, the environment, food security, gender development, and HIV/AIDS and
health.885 These themes are all deeply political but NICE managed to relegate politics to a
sphere that posed no threat to wider power relations. The ‘safe sphere’ was ‘the grassroots’,
often used as a synonym for ‘the community’. Englund concludes that NICE’s civic education
defined political problems as if they were reducible to communities, and thereby they made
the communities themselves the problem. The grassroots/community was asked to assume
881
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, 9, 10, 12, 14, 15.
882
Englund, Prisoners of Freedom, supra note 414, at 76.
883
Ibid., at 77.
884
Ibid., at 99-100.
885
Ibid., at 99.
133
responsibility for its own development. In the name of ‘participatory methods’, greater input
to the community’s own development was called for.886 This meant that the people in Malawi
should learn to work for their development without waiting for the world around them to
change first.887 This was not unique to NICE’s work in Malawi, but a wider trend in
development practice. This is an example of ‘either/or’ kind of thinking – concentrating either
on only the community as if the solution is to be found there OR on the wider policy
environment as if the solution is in changed laws and policies. Few programmes have
managed to engage both levels.
Concluding remarks on participation
When the starting point is that participation is a democratic right, participation is by the
people – not something done for them.888 This simple fact is often forgotten in human rights
work as well as in development programming. When experts are involved, they tend to
believe that they know what is best for ‘the poor’ and participation becomes consultation or
superficial involvement in activities.
In human rights discourse participation is a legal right. Adding this as an argument to
strengthen popular participation at all levels of decision-making adds to the legal legitimacy
of participatory approaches in development. However, the argument that human rights-based
approaches can add value to existing participatory approaches by paying attention to the
quality of the participation process does not tolerate closer scrutiny. Many serious
development NGOs that work in partnership with local people have probably given this
question more thought than any human rights body at the international or national level. The
‘active, free and meaningful’ criteria, which is included in the Declaration on the Right to
Development and the Common Understanding has not been given extensive consideration or
interpretation by the human rights community.
Since participation is a right, advancing participation in decision-making is an objective in
itself according to human rights thinking. It is a right to be an active participant in political
processes, being able to speak up and be listened to by those in power – and that has its own
value. However, it is also about enabling people to actively draw on their civil and political
rights in order to achieve something else, often their economic, social and cultural rights.889 In
this way participation strives for a broader change agenda.
It is common both among human rights groups and development organisations, who define
part of their work as participation, to view it as a way to link voice to accountability. The aim
is thus to ensure that personal and community empowerment has a broader political change
agenda and impact. The method is to start with identifying people’s needs or problems and
link them to advocacy strategies designed to influence and hold public power holders
accountable.890 In this case the aim is to increase participation in the relationship between
people as citizens and rights-holders and the different power holders such as government
institutions, donors and corporations that make policy decisions that have great impacts on
poor peoples’ lives.
886
Englund, Prisoners of Freedom, supra note 414, at 100.
887
Ibid., at 103.
888
Compare to Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
889
See Rowlands, “The Right to be Heard”, supra note 829, at 1. Oxfam GB has a global programme of work on
the theme of ‘the right to be heard’.
890
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 14.
134
2.4.7 Empowerment
Power and empowerment – the cause of confusion?
The concept of empowerment gained popularity in the 1980s in development discourse,
particularly among village-level practitioners.891 One can say that empowerment discourse is
a contribution from the grassroots, and in the early days it came with the message from those
working at the local level that, despite the rhetoric of participatory development, the power to
define priorities is in the hands of a minority at the top.892 Today, most development agencies
claim to work on empowerment of the poor; work that no longer only occurs in close, face-to-
face interactions between local organisations and their constituencies. References to
empowerment are today found throughout development cooperation policies and
programmes, and yet definitions are rare. Various attempts have been made, and most of these
definitions focus on issues of gaining power and control over resources, expanding people’s
choices and opportunities, and investing them with the capacities and capabilities needed to
affect change in their lives.893 Most of these definitions, by the UN, the World Bank and
bilateral donors, reflect the idea that ‘empowerment’ is a liberal concern, trying to enable
people to make their own choices,894 thereby reclaiming the power over one’s own life.
VeneKlasen et al. point out that many human rights and development initiatives reflect a
linear understanding of the notion of power. Effective strategies to address power need to take
into account both visible forms of power (legislatures, laws and policies that can discriminate
and undermine rights and participation of certain groups) and hidden forces of power that set
the political agenda and benefit the privileged sectors of society. When working on
participation and rights, actors need to acknowledge that the process that often is described as
empowerment is ultimately about challenging and transforming these types of power relations
and creating new relationships based on equality. In this process, conditions are created to
help people expand their capacity and analyse problems and deal with power at all levels.895
For these reasons this presentation starts with an investigation into the concept of power, and
then moves on to dealing with the two concepts together.
Naila Kabeer observes in her work in the early 1990s that empowerment as a concept is
clearly rooted in the notion of power and powerlessness, or absence of power. Analysis of
powerlessness was, however, abandoned due to the static connotations and the focus shifted to
the more processual aspects of power, i.e., empowerment and disempowerment. This is based
on the insight that those who appear to have little power are still able to resist, to subvert, and
sometimes to transform the conditions of their lives. However, the question remains what is
meant by power, and therefore also by empowerment.896 For all these reasons empowerment
is a highly contested concept. Jo Rowlands points out that the reason for the confusion about
empowerment is because the root-concept – power – is itself disputed. She argues that it is the
differences in the way in which power is understood that can help explain the anomaly that
891
Black, Development in Theory and Practice, supra note 542, at 48.
892
Naila Kabeer, Reversed Realities: Gender Hierarchies in Development Thought (London: Verso, 1994) at
223.
893
Jeremy Holland and Simon Brook, “Measuring Empowerment: Country Indicators”, in Ruth Alsop (ed.)
Power, Rights, and Poverty: Concepts and Connections (New York: The World Bank, 2005) 93-110, at 94.
894
See Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note, at 264-265.
895
See VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
896
Kabeer, Reversed Realities, supra note 892, at 224.
135
people and organisations as far apart politically as feminists, Western politicians and the
World Bank all have embraced the concept of empowerment.897
Although going deeply into power discourse and the discussions about the meaning of power
and powerlessness is beyond the scope of this chapter, I will briefly highlight the main
differentiations in how power is understood. Many important analyses of power in political
science, sociology, and philosophy presuppose a definition of power as getting someone else
to do what you want them to do (‘power over’). Michal Foucault, Max Weber and Robert
Dahl are examples of influential writers who have worked with this kind of definition, with
their own nuances of course.898 Steven Lukes’ influential book Power: A Radical View, first
published in 1974, also follows the power-as-domination path, although introducing a three
dimensional view on power. Lukes claims that his writing about power is specific: it concerns
power over others, i.e., power as domination. He defines this kind of power as “the ability to
constrain the choices of others, coercing them or securing their compliance, by impeding them
from living as their own nature and judgment dictate.” The question how can we know when
such power is at work, Lukes answers by encouraging penetration that goes behind
appearances for the hidden, least visible forms of power. Power is the ability to bring about
significant outcomes even without active intervention.899
This view on power as either ‘power to’, i.e., the capacity of an actor to affect the decision-
making patterns and outcomes against the wishes of other actors, or as ‘power over’, i.e.,
implicitly accepted and undisputed procedures within institutions that systematically benefit
certain individuals and groups at the expense of others,900 has influenced the debates on power
and empowerment. When power is understood as domination it can be described as ‘zero-
sum’: the more power one person has, the less the other has.901
There seems to be some mismatch between how the notion ‘power to’ is used by different
authors. Lukes uses this notion as one aspect of power as domination, while Jo Rowlands
defines ‘power to’ as “generative power or productive power (sometimes incorporating or
manifesting as forms of resistance or manipulation) which creates new possibilities and
actions without domination.” She mentions the example of leadership that comes from the
wish to see a group achieve what it is capable of. This model of power is not a zero-sum as
one person’s power does not automatically diminish that of another.902 Many feminists have
argued for a reconceptualisation of power as capacity or ability, thereby understanding power
not as ‘power over’ but as ‘power to’ (e.g. transform oneself or others). This is a kind of
ability to foster transformative and empowering growth.903
897
Jo Rowlands, Questioning Empowerment: Working with Women in Honduras (United Kingdom: Oxfam,
1997) at 9.
898
Amy Allen, “Feminist Perspectives on Power”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of
Philosophy, Spring 2011 edition. Available at http://plato.stanford.edu/entries/feminist-power/, visited 17
January 2012.
899
Steven Lukes, Power: A Radical View (Palgrave Macmillan, 2005, second edition) at 12, 85-86. VeneKlasen
et al. point out that many human rights and development initiatives reflect a linear understanding of the notion of
power. Effective strategies to address power need to take into account both visible forms of power (legislatures,
laws and policies that can discriminate and undermine rights and participation of certain groups) and hidden
forces of power that set the political agenda and benefit the privileged sectors of society. See VeneKlasen, Miller
et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
900
Kabeer, Reversed Realities, supra note 892, at 224-225.
901
Rowlands, Questioning Empowerment, supra note 897, at 9.
902
Ibid., at 12.
903
Allen, “Feminist Perspectives on Power”, supra note 898.
136
Rowlands adds the categories ‘power with’ and ‘power from within’ as important for the
understanding of the process of empowerment. She defines ‘power with’ as “a sense of the
whole being greater than the sum of the individuals, especially when a group tackles problems
together”. 904 ‘Power from within’ is creative; it is an affecting and transforming power but
not a controlling power. It is a positive, life-affirming, and empowering force that stands in
stark contrast to power understood as domination, control, or imposing one’s will on other
people.905 ‘Power from within’ has its basis in self-acceptance and self-respect, which implies
respect for and acceptance of others as equals.906 Empowerment must be understood as
including both individual conscientisation907 (‘power within’) as well as collective work,
which lead to politicised ‘power with’ others, which again provides for ‘power to’ bring about
change.908
Rowlands points out that when power is defined as the ability of one person or group to get
another person or group to do something against their will, i.e., ‘power over’, then
empowerment means bringing people who are outside the decision-making process into it.
Understandably, this leads to a strong emphasis on participation in political structure and
formal decision-making as well as on the ability to obtain an income that enables participation
in the economic sphere.909 The World Bank operates with such understandings of
empowerment, although also taking into account participation in informal institutions.
According to the World Bank Sourcebook on empowerment and poverty reduction,
“empowerment is the expansion of assets and capabilities of poor people to participate in,
negotiate with, influence, control, and hold accountable institutions that affect their lives.”910
‘Institutions’ include the state, markets, civil society, and international agencies but also
informal institutions such as norms of social exclusion, exploitative relations, and corruption.
Removal of formal and informal institutional barriers that prevent men and women from
taking action to improve their lives is key to empowerment. People need a range of assets and
capabilities at the individual level (e.g. health, education, housing) as well as at the collective
level (such as the ability to organise and mobilise to take action).911 Microenterprise credit
programmes have been a widely used development intervention that has aimed at improving
these assets and capabilities, especially for women.
Attempts to measure empowerment: An example of microenterprise credit for women
Various studies have been carried out to evaluate whether a development intervention is
‘empowering’, and for these purposes various indicators of empowerment have been set. For
example Hashemi et al. used the following indicators to evaluate the empowerment potential
of women’s participation in credit programmes: mobility; economic security; ability to make
small purchases; ability to make large purchases; involvement in major decisions; relative
freedom from domination by the family; political and legal awareness; participation in public
904
Rowlands, Questioning Empowerment, supra note 897, at 13.
905
Allen, “Feminist Perspectives on Power”, supra note 898.
906
Rowlands, Questioning Empowerment, supra note 897, at 13.
907
Conscientization, or critical consciousness, is a popular education and social concept developed by Paolo
Freire.
908
Parpart, Rai & Staudt, “Rethinking Em(power)ment: An Introduction”, in Jane L. Parpart, Shirin M. Rai &
Kathleen Staudt (eds), Rethinking Empowerment: Gender and Development in a Global/Local World (London:
Routledge, 2002) 3-21, at 4
909
Rowlands, Questioning Empowerment, supra note 897, at 13.
910
The World Bank, “Empowerment and Poverty Reduction: A Sourcebook”, 2002, at vi. Available at
http://siteresources.worldbank.org/INTEMPOWERMENT/Resources/486312-1095094954594/draft.pdf, visited
14 May 2012.
911
The World Bank, “Empowerment and Poverty Reduction”, supra note 910, at vi-vii.
137
protests and political campaigning; and a composite empowerment indicator, meaning that a
woman was classified as ‘empowered’ if she had a positive score on at least five of the eight
indicators.912 The analysis found that involvement in credit programmes does empower
women,913 but that is not what is interesting about this study. What is interesting are the
indicators used to capture what is meant by ‘empowerment’. An ‘empowered’ woman is
someone who goes to the market; owns her house or land; makes small purchases without
asking permission of the husband; makes decisions on issues such as leasing land; is free to
work outside the home; knows the law governing inheritance; and has protested with others
on issues such as domestic violence. These are things that women received ‘empowerment
points’ for in the study.914
The study seems to suggest that there is a clear line between empowerment and
disempowerment, and that ‘outside experts’ can draw conclusions about who has reached the
state of being ‘empowered’. Naila Kabeer makes an important point when she notes that some
of the indicators used may reflect organisational priorities rather than women’s own, and
cannot be taken as evidence of real change in power relationships unless they are also valued
by women themselves as an aspect of their own goals.915 Often empowerment is described as
either an outcome, which can be measured, as in the case above, or as a process. Although in
fact, empowerment is both a process and an outcome. Additionally it is a process that is often
both fluid and unpredictable, making it challenging to measure, which of course does not
mean researchers should not try.916
Kabeer has studied a number of evaluations of credit programmes’ impact on empowerment
of women loanees and she finds that what all these evaluations have in common is the
absence of the voices of the women themselves telling the evaluators what kinds of impact
they might value and what aspect of their own subordinated position in the family and society
they might most want to change. The women had no opportunity to testify on their own behalf
as to what credit has meant to them.917 The central question is whose perspective should count
when assessing meanings and significance. Impact has to be assessed in relation to the
situation before the loan in order to understand what the kinds of changes were made possible
as a result of the loan.918 The women themselves are the best experts on their own situation
before and after the loan, and they can give meaning and significance to the changes they
experience.
In order to explore what the women’s own vantage point can add to our understanding of the
empowerment potential of the loans given, Kabeer made a participatory impact assessment of
a credit programme in Bangladesh.919 Many of the women interviewed gave witness of
improvements in their lives as a result of greater economic and personal autonomy that access
to credit has allowed them to achieve. Many of the changes reported in Kabeer’s study are
also reported in outsider evaluations of the impact of loans, such as reduction in domestic
violence, increased decision-making and greater choice in household resource allocation.
912
Syed M Hashemi, Ruth Schuler Sidney and Ann P Riley, “Rural Credit Programs and Women's
Empowerment in Bangladesh”, 24 World Development (1996) 635-653, at 638-639.
913
Ibid., at 650.
914
See explanation of indicators in Hashemi, Schuler Sidney and Riley, “Rural Credit Programs”, supra note
912, at 638-639.
915
Naila Kabeer, “’Can I buy me love’? Re-Evaluating the Empowerment Potential of Loans to Women in Rural
Bangladesh”, IDS Discussion Paper 363, 1998, at 16. Available at http://www.ids.ac.uk/files/Dp363.pdf, visited
10 May 2012.
916
Parpart, Rai and Staudt, “Rethinking Em(power)ment”, supra note 908, at 4.
917
Kabeer, “’Can I buy me love’?”, supra note 915, at 18.
918
Ibid., 80.
919
Ibid., 19 and 32.
138
What is stressed the most in Kabeer’s study, was the women’s own sense of enhanced self-
worth as economic actors. Her study reveals that one of the most important impacts is related
to women’s enhanced sense of self-worth, of bringing something of value to their
households.920 This internal aspect of empowerment was not captured in the evaluations in
which women’s own experiences where not listened to.
Furthermore, women did not attach as much value to individualised forms of control over
resources as some ‘outside’ evaluations of credit schemes claimed that they do, or ‘should
do’. The ability to participate in joint decision-making about how loans were used and how
the income from loans were to be used mattered more to the women interviewed. Lending did
contribute to a greater voice in household decision-making processes.921 Naturally, the aim of
any empowerment strategy should be to participate with greater strength in decision-making
and actually influence such decisions,922 but this does not have to be at the expense of other
decision-makers. All of this indicates that empowerment is more nuanced when the starting
point is ‘power to’ and ‘power with’ instead of ‘power over’.
Rowlands points out that when power is given a generative meaning, ‘power to’ and ‘power
with’, empowerment is concerned with the processes in which people become aware of their
own interests and how those relate to the interest of others.923 Power is not about domination
and the power of others is not diminished once you get more power. It is a power that
contributes, rather than takes away, a power that strengthens rather than weakens.924
Rowlands distinguishes between three dimensions of empowerment: personal, relational, and
collective. Personal empowerment means “developing a sense of self and individual
confidence and capacity, and undoing the effects of internalised oppression.” (Compare to the
Kabeer study in which one of the most important impacts was related to women’s enhanced
sense of self-worth, of bringing something of value to their households.) Relational
empowerment is experienced when one develops the “ability to negotiate and influence the
nature of a relationship and decisions made within it.” (Compare to the fact that lending did
contribute to a greater voice in household decision-making processes for women.) Collective
empowerment is demonstrated where individuals work in a group to achieve a more extensive
impact.925 This is often very important in work where women work as a group on finding
solutions to common problems. While collective aspects of empowerment are important, it
should not be forgotten that women always act as individuals, and there is no reason to expect
women, even from the same class or caste, to respond identically to new opportunities. It is
not possible to plan an intervention which will be automatically empowering to all women.
What a good intervention can do is to create an environment or provide resources which are
most likely to enable as many women as possible to empower themselves.926
Kabeer raises the issue that empowerment is often conceptualised unidimensionally so that it
is assumed that if women are not found to be empowered by one indicator, they must be
disempowered. Instead empowerment can be seen as “an expansion in the range of potential
choices available to women so that actual outcomes reflect the particular set of choices which
the women in question value”.927 The important point is that it is an expansion of choices
920
Kabeer, “’Can I buy me love’?”, supra note 915, at 51 and 82.
921
Ibid., at 82-83.
922
Rowlands, Questioning Empowerment, supra note 897, at 14.
923
Ibid., at 14.
924
Kabeer, “’Can I buy me love’?”, supra note 915, at 34 and 81.
925
Rowlands, Questioning Empowerment, supra note 897, at 15.
926
Kabeer, “’Can I buy me love’?”, supra note 915, at 85-86.
927
Kabeer, “’Can I buy me love’?”, supra note 915, at 85. Emphasis in original.
139
which the woman in question values. This is the central thinking in Amartya Sen’s capability
approach, where individual advantages are judged by a person’s capability to do things he or
she has reason to value. The focus is on the freedom that a person has to do things that he or
she may value doing or being. The capability approach should be judged in terms of
individual opportunity rather than a specific ‘design’ as to how a society should be organised.
Sen points out that as the capability perspective does point to the central relevance of
inequality of capabilities in the assessment of social disparities, it does not, on its own,
propose any specific formula for policy decisions.928 Therefore, we should keep in mind that
Sen’s work on capabilities is only a source of inspiration for the empowerment discourse, and
there are no clear answers how these notions should be operationalised into practice in
development policies or otherwise.
Based on her study, Kabeer draws some broader lessons regarding empowerment and how to
evaluate interventions that claim to empower people. Her first point is that ‘empowerment’ is
a multidimensional process of change that cannot be reduced to any single aspect of process
or outcome.929 In her book from 1994 Kabeer also highlighted the multidimensional nature of
power and suggested that empowerment strategies of women must build on ‘the power
within’ as the basis for improving their ability to control resources, to set agendas and make
decisions.930 Strategies of ‘empowerment from within’ provide women with new perspectives
as they are able to review their lives from other vantage points. Reflection, analysis and
assessment of what has been taken for granted uncovers socially constructed and socially
shared basis of apparently individual problems. Moreover, new forms of consciousness can
arise out of women’s new access to analytical skills, social networks, organisational strength,
and a sense of not being alone.931
Empowerment is not something done to people, but rather it is a participatory process that
engages people in reflection, inquiry, and action.932 Development cooperation initiatives
cannot ‘empower women’ but instead programmes can help to create the conditions whereby
women can become “agents of their own development and empowerment”.933 Institutions,
including international agencies, can support processes that increase women’s self-reliance,
building self-confidence, solving problems, gaining skills, and help them set their own
agendas.934
Are human rights empowering?
The Common Understanding does not include empowerment in the list of human rights
principles. Yet, empowerment is often included as an important element of human rights-
based approaches to development. The question is what human rights add to the ‘good
development discourse’ on empowerment? Are human rights empowering? This question is
far too great to be answered here and it reappears throughout the thesis. First of all, I will not
attempt to answer the question whether the practice of human rights has empowering
outcomes, i.e., are the results from struggles over rights empowering? I will instead focus on
928
Amartya Sen, The Idea of Justice (Cambridge: Harvard University Press, 2009) at 231-232.
929
Kabeer, “’Can I buy me love’?”, supra note 915, at 80.
930
Kabeer, Reversed Realities, supra note 892, at 229.
931
Ibid., at 245-246.
932
See VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 9.
933
Development Assistance Committee, “DAC Source Book on Concepts and Approaches Linked to Gender
Equality”, OECD, Paris 1998, at 9. Available at http://www.oecd.org/dataoecd/4/16/31572047.pdf, visited 14
May 2012.
934
CIDA’s Policy on Gender Equality. Available at http://w3.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/eng/EMA-
218123616-NN9, visited 14 May 2012.
140
the question of whether human rights discourse and language is empowering or
disempowering from the perspective of marginalised rights-holders. My focus is thereby more
on the processual aspects of empowerment.
It is a fact that human rights discourse has captured the attention of people around the world
in a way that few other discourses have done. Likewise, it is a fact that an enormous global
phenomenon has emerged on human rights.935 Human rights thereby play a political role,
empowering the individual and limiting the power of the sovereign, but we should keep in
mind that they are foremost a rights discourse rooted in the legal tradition.936 Whether this is a
strength or a weakness can be debated and different actors have their own opinions about this.
With regard to the empowerment potential of human rights, one can first of all note that the
establishment of human rights as a legal structure is one aspect, and the possibilities to use
this structure to expand possibilities is another. When there are legal norms to protect human
rights of individuals in a society this is naturally a good starting point for empowerment
defined by Kabeer as “an expansion in the range of potential choices available”. However,
we should not forget the other half of the definition “so that actual outcomes reflect the
particular set of choices which the women [or men] in question value”,937 which indicates the
importance of whose perspective counts in empowerment processes. Human rights must be
valued as important and relevant in the daily lives of marginalised people in order for them to
become relevant, as a language used against oppression, and as tools used to improve the
quality of peoples’ lives.
Concerning the human rights language associated with human rights discourse, Charles R.
Beitz observes that “the language of human rights has become the common idiom of social
criticism in global politics”.938 Human rights have called forth an advocacy revolution in the
form of the emergence of a network of non-governmental organisations to pressure states to
practice what they preach. Human rights have thus given witnesses and bystanders a stake in
abuse and oppression both within and beyond the national borders.939
Hugo Slim sees empowering potential as the language of rights enters international
development. The same people who used to be seen as ‘needy’ or ‘beneficiaries’ can now
present themselves as rightful and dignified people who “can make just demands of power
and spell out the duties of power in terms of moral and political goods.” These people move
from being objects to being subjects of their own free speech.940 Indeed it is easy to agree that
it is more empowering to be a claimant of rights than an object of a more or less arbitrary
charity. At the same time, we should be aware that the language of human rights has many
limitations. First of all, the language of human rights is not only spoken by the oppressed but
also by the powerful, by the very same governments, inter-governmental organisations and
government agencies that are criticised for oppressive policies. Human rights language has
become ‘mainstreamed’ into policy frameworks of states, multilateral lending institutions and
the UN.941 Similarly, it can be observed that from one aspect codified human rights legitimate
the power of states; and from another they are also the means to challenge this power.942
935
Miia Halme, Human Rights in Action (University of Helsinki, Research Series in Anthropology, 2008) at 211.
936
Paulina Tambakaki, Human Rights, or Citizenship? (New York, Birbeck Law Press: 2010) at 13.
937
Kabeer, “’Can I buy me love’?”, supra note 915, at 85. Emphasis in original.
938
In The Idea of Human Rights (Oxford: Oxford University Press, 2009), preference.
939
Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001) at 8.
940
Slim, “A Response to Peter Uvin”, supra note 57, at 3.
941
Ignatieff, Human Rights as Politics and Idolatry, supra note 939, at 22.
942
See Tambakaki, Human Rights, or Citizenship?, supra note 936, at 74. Or as Mahmood Mamdani points out
“Rights talk legitimises power because it develops an accountability of power.” Mamdani, Beyond Rights Talk
and Culture Talk, supra note 37, at 6.
141
Moreover, we must keep in mind that although there are analogies to human rights ideas in
various cultural traditions, the particular form that they have taken in the human rights
movement have post-Enlightenment, rationalist, secular, Western, modern and capitalist
origins.943 When combined with the unequal relationships between the West and everyone
else, and the fact that human rights criticism has been an overwhelmingly one-way street,944 it
is clear that the language of human rights can be perceived as disempowering for many people
and groups in the so called developing world.
Human rights education
The language of human rights has been preached to a great extent as part of ‘awareness
raising’, in the belief that if people only know that they have human rights, they will start
claiming them. Miia Halme observes in her doctoral dissertation that one characteristic of the
human rights phenomenon is the radical and transformative potential of human rights
discourse; “adherence to the human rights discourse has come to mark the abandoning of old
ideologies and embracing of new ways of thinking.” This discourse promises to challenge old
structures of oppression and, in the name of the equal worth of all, to liberate the individual
from them. One of the dominant tools used to realise these desires is commonly construed as
human rights education, making the individuals conscious of oppression and empowering
them.945
The objective of human rights education is said to include not only a learning process about
human rights and mechanisms for their protection, but also skills to apply them. Developing
values, attitudes, and behaviour which reinforce human rights is another element of human
rights education, and so is taking action to defend and promote them.946 According to Garth
Meintjes human rights education should lead to a process of acquiring the knowledge and
critical awareness needed to understand and question oppressive patterns of social, political,
and economic organisation. Therefore, human rights education is often claimed to be
empowering. The idea of human rights education as empowerment, however, demands
pedagogical skills that differ in terms of objectives and methods from other areas of
conventionally defined education. Meintjes claims that the danger is that while the rhetoric of
empowerment is increasingly accepted, the ends and means remain those of conventional
education.947
This is probably what happened in the NICE project in Malawi that we reviewed in the
section on participation. NICE is, however, not the only example of educational activities on
human rights failing to employ pedagogical methods that are empowering. In her analysis of
certain educational activities of a Nordic and Scandinavian network of human rights experts,
Halme asks “whether its educational mode provides students with increasing control or
mastery over their own lives with which to challenge oppressive structures”,948 (central
elements of empowerment) and she assesses how the education activities can be seen as
943
David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton: Oxford
University Press, 2004) at 18.
944
Ibid., at 20
945
Halme, Human Rights in Action, supra note 935, at 212.
946
Elena Ippoliti, “Human Rights Education: Global Initiatives at the United Nations”, in C. Mahler, A. Mihr &
R. Toivanen (eds), The United Nations Decade for Human Rights Education and the Inclusion of National
Minorities (Frankfurt am Main, Peter Lang, 2009) 11-18, at 12.
947
Garth Meintjes, “Human Rights Education as Empowerment: Reflections on Pedagogy”, in G. J.
Andreopoulos & R. P. Claude (eds), Human Rights Education for the Twenty-First Century (Philadelphia,
University of Pennsylvania Press: 1997) 64-70, at 65-66, 70.
948
Halme, Human Rights in Action, supra note 935, at 106.
142
contributing to the goal of empowering participants.949 Halme concludes that learning is
construed as the adoption of necessary information ‘dispensed’ by authorities to those who are
to receive it, and the outcome of the learning process is static – instead of empowering
students to become conscious of their own participation in the creation of knowledge.950 Her
conclusion is that the learning process is static instead of empowering, and participants are
held in predetermined positions. There is strict separation between faculty participants who
hold ‘knowledge’ and students who benefit from this knowledge.951
As we have seen, Englund has made similar observations concerning ‘civic education’
activities on the subject of human rights and democratisation in Malawi. He views human
rights discourse in Malawi as a disempowering discourse, characterised by elitism, and he
calls it a “thinly veiled patronizing approach that enabled self-proclaimed experts to discount
popular responses to their interventions.”952
Halme and Englund both come to similar conclusions: human rights education, as it has been
provided in their respective case studies, has missed opportunities to empower participants.
Both see human rights education as hierarchical and non-participatory. Challenging
oppressive structures is not taking place and instead the teachers or ‘facilitators’ are placed
within exciting hierarchies.953 Naturally, there are great differences between human rights
education in a Nordic setting, at a university level, and civic education carried out in rural
Malawi. However, it seems that the approaches used are not far apart, both seeing the process
of enhancing knowledge as linear, flowing from the teacher to the student. According to Paulo
Freire education should begin with resolving the teacher-student contradiction so that both are
simultaneously teachers and students. This approach is not found in conventional, ‘banking’
education.954
One reason that human rights education has challenges in being empowering is perhaps the
strong discourse of ‘expert knowledge’ prevalent in human rights discourse. The concept of
human rights is seen as ready-defined, by experts. Empowerment is hard to reach if ‘students’
are seen as only the receivers of ready-defined concepts, instead of partners in a process
where the human rights concept itself is critically analysed. It is necessary to contextualise
and give meaning to human rights so that they are understood in the context of people’s lived
experience. People may have the experience of denial of the right to health care or freedom of
expression. In a ‘human rights from below’ approach, the facilitators start from people’s
personal stories, hopes, disappointments, pain and experience of oppression – not from a
remote ‘universal declaration’ or bill of rights. There can still be reference to such documents
“but only in the sense that they represent specific attempts to articulate humanity in particular
contexts and at particular times”. They are not ‘the holy writ’. Instead they can be examined
from the perspective of the actors’ reality.955
Perhaps it should not be surprising that human rights education has challenges to be
empowering as the whole idea about empowerment is fairly new to human rights discourse
949
Halme, Human Rights in Action, supra note 935, at 107.
950
Ibid., at 115.
951
Ibid., at 213.
952
Englund, Prisoners of Freedom, supra note 414, at 69.
953
Ibid., at 104.
954
Freire, Pedagogy of the Oppressed, supra note 364, at 53-54.
955
Ife, Human Rights from Below, supra note 8, at 203.
143
and has been invented by other discourses, such as that of alternative development956 and
pedagogy.957
This short analysis highlights the tensions and paradoxes between the ambition of human
rights and the actual practices that are trying to translate the principles into reality on the
ground. In theory, human rights can be very empowering – in practice reality is more
complicated and complex.
Human rights-based empowerment
Power has the ability to prevent people’s participation and the fulfilment of their rights, and
therefore questions of power and empowerment are central for human rights-based work.958
Darrow and Tomas suggest that human rights do add value to good programming since they
imply dignity and respect for the inherent worth of the individual, an argument which is based
on the universal character of human rights. They use the same definition of empowerment as
the World Bank in its Sourcebook, only adding that empowerment means increasing the
capacities of people to claim and exercise their rights effectively. (This kind of rights
language is not used by the World Bank.) In order to support empowerment, it is held that
programme priorities should be in the area of education and access to information; strategies
for inclusion and participation in decision-making; accountability of state officials; and
building of local organisational capacity.959
Hans-Otto Sano has observed that the practice of rights-based empowerment include activities
for rights-holder mobilisation, civil society participation, and advocacy strategies that include
campaigns and litigation. This results in processes of knowledge enhancement and learning,
in organisational development and capacity building, in the creation of new channels of
interaction, and also in direct actions of rights-realisation.960
This highlights the formal and external aspects of creating an environment in which people
can empower themselves. Emphasis in human rights-based empowerment is on enhancing
people’s ability to claim and exercise their rights effectively.961 (This is an important feature
of the Common Understanding despite the fact that the word ‘empowerment’ is not used in
this context.) There is no questioning whether people value expanding their skills and choices
when claiming and exercising their rights.
As in the discourse and practice around human rights-based approaches to development
assistance in general, the discourse around empowerment is also diverse. While some
agencies see rights as a means of addressing issues of accountability of duty-holders, others
put rights into the context of enabling people to empower themselves to overcome obstacles
to the realisation of social and economic rights. Cornwall and Nyamu-Musembi critically
observe that CARE’s work in Kenya is an example of the latter, where ‘empowerment’ has
meant ‘opting-out’ of public services rather than making demands on the state as a duty-
holder.962 Just as ‘participation’ can be (mis)used to give communities an increasing role in
956
See e.g. Friedman, Empowerment: The Politics of Alternative Development, supra note 263.
957
Although Paulo Freire did not use the concept ‘empowerment’ he is often considered a pioneer in this area
with his classic book The Pedagogy of Oppressed, first edition of 1971.
958
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
959
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 494. Emphasis is that of the author.
960
Sano, “Making Rights Work for the Benefit of the Poor”, supra note 790, at 11.
961
See e.g., Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note
708, at 51.
962
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1431.
144
co-production and self-provisioning of many services,963 and thereby giving rights-holders
many functions that, according to human rights instruments, should belong to the state, so can
‘empowerment’ be used as a strategy to increase self-reliance instead of making demands on
duty-holders.
Another strategy for empowerment is to work alongside poor people as advocates, and
thereby increase the capacity of citizens to claim their rights.964 Ideally, human rights work
combines a local perspective with a national and global perspective. In development practice,
empowerment is mostly associated with the local level. Jane Parpart et al. point out that
empowerment cannot be understood only at the local level but requires attention to the
“specific historical struggles of women and men within structures and discourses of power
operating at micro-, meso- and macro-levels.”965
There can be misunderstandings when the slogan ‘people cannot be empowered, only
empower themselves’, which is an important insight, is translated into human rights-based
work. People can empower themselves to make demands on duty-holders. Rights-based
empowerment does not mean people start building the school on their own (or whatever
demand it is they have). When mobilisation for human rights is on the agenda, empowerment
does not automatically lead to increased self-reliance. Instead people start to make demands
on the duty-holders to respect, protect, and fulfil their rights. If this process can be called
‘empowerment’ can and should be debated. The issues at stake are especially who sets the
agenda, who decides what issue to mobilise around, and what happens in the process of
translating people’s daily challenges into human rights language.
VeneKlasen points out that when working on participation and rights, organisations need to
acknowledge that the process that often is described as empowerment is ultimately about
challenging and transforming these types of power relations and creating new relationships
based on equality. In this process, conditions are created to help people expand their capacity
and analyse problems and deal with power at all levels.966 Considering that human rights
discourse, and human rights education in particular, is often characterised by elitism and static
learning models, this kind of work needs to start with the human rights organisations
themselves.
Concluding remarks on empowerment
As pointed out by Kabeer, empowerment is a multidimensional process of change that cannot
be reduced to one aspect, such as human rights. The human rights-based definition of
empowerment, suggested by Darrow and Tomas, i.e., “increasing the capacities of people to
claim and exercise their rights effectively”, is too narrow. Human rights can play a role in
empowerment processes but the willingness to use human rights as tools to expand
possibilities must come from within the individual or group, especially considering that
human rights discourse is associated with elite capture in many countries of the South.
Following on from the thinking by Kabeer and Sen, individuals must have reason to value the
actual outcome that can be achieved through asserting human rights.
As human rights traditionally have been seen as safeguards against power, and power in this
case means ‘power over’, it is natural that human rights discourse has focussed on meanings
of empowerment that use this kind of definition of power as the starting point. Human rights-
963
See Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 76.
964
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1430.
965
Parpart, Rai and Staudt, “Rethinking Em(power)ment”, supra note 908, at 12.
966
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
145
based empowerment strategies then naturally focus on access to information, education,
bringing people outside of decision-making into it, accountability of state-officials, advocacy
strategies that include campaigns and litigation. There is less focus on ‘empowerment from
within’ which would provide people with possibilities to analyse and review their lives from
new perspectives. As far as I know there has not been any research on what role a human
rights perspective could possibly add to this kind of analysis, reflection, and assessment. Both
aspects of empowerment are important. If empowerment is to go beyond rhetoric to action,
economic and political power to use legislation, having access to institutions and resources is
a key issue, especially for women.
It is clear that the process of empowerment has both an internal and external aspect; it
includes inner reflection about one’s own inherent worth and ability as a human being as well
as outer reflection and action challenging and transforming ridged relationships. For example,
women’s empowerment cannot come in the same language as has been infused by values of
patriarchy. Empowerment has to come from a place within. The fact that someone learns that
he or she has human rights just because he or she was born human, does not necessarily
change this individual’s sense of self-worth. In addition, inner reflection and transformation is
needed. ‘Power with’ others through collective action and politics is often a force that has
transformative capacity, leading to processes and outcomes that are valued as empowering by
the participants themselves.
The purpose of reviewing some of the critical accounts made of human rights discourse,
especially human rights education, as disempowering is to remind us that challenging old
structures of oppression seldom occurs in a neatly organised fashion, from comfortable seats
in a class room. Learning about human rights does not automatically lead to empowerment, or
to taking actions to achieve change and address oppression. Change is a messy process, as
most organisations involved in rights-based empowerment have learned. Moreover, it is clear
that the role of human rights in processes of change can be static and disempowering or
‘alive’, claimed in the moment, and empowering. The context and the process matter and
often there is a fine line between empowerment and disempowerment. We should also keep in
mind that just because there are instances of human rights discourse failing to live up its own
ambitions to achieve change, this does not mean that human rights should be abandoned as a
source of inspiration that can inform struggles against oppression.
2.4.8 Concluding remarks on human rights principles
This chapter has tried to give an overview over diverging concepts and interpretations. It has
also posed critical questions concerning the added value of human rights principles in
development, and whether human rights discourse contributes to empowerment.
One of the overall questions in this thesis is what role human rights (as standards, as
principles, as a language) play in development practice, and whether they have transformative
potential. The answer to this question always depends on the context – and in order to
understand the context it is important to understand how the actors involved in shaping this
context define and apply so called human rights principles. Participation, accountability, and
empowerment can be used as labels in a technocratic, ‘from above’ fashion that leaves little
room for deeper structural change or these principles can give people opportunities to
challenge structures that are hindering their human rights realisation, leading to personal and
political transformation.
It is important to be aware of the different forms that the various so called human rights
principles can take in development cooperation and otherwise. This is especially true
146
concerning accountability, participation, and empowerment which have strong foundations in
other disciplines and discourses outside of the normative human rights tradition. Once we
know something about how the principles in question have been interpreted and applied in
‘good development practice’ it is easier to be clear about the link they have to human rights.
It is not always possible to see a clear distinction between good development principles using
instrumental or utilitarian motivations and normatively-based human rights approaches seeing
human rights as ends in themselves (a distinction made by Darrow and Tomas). Development
practice is far too complex to allow this kind of comparison, and the role human rights in
general and human rights principles in particular play in this field is very diverse. Again, we
must keep in mind that there is not one human rights-based approach to development but
many approaches with different working methods and overall motivations for their work. A
general distinction seems to be between an ‘empowerment model’ to human rights and
development and a more legalistic approach concerning the role of human rights standards in
development practice. The latter is driven by the conviction that human rights are ends in
themselves while the former strives for broader and deeper social and political change, also
questioning the human rights concept itself. Human rights and the principles of participation,
accountability, and empowerment are means to achieving this wider agenda.
147
PART III THE ROLE OF HUMAN RIGHTS IN FOOD SECURITY
EFFORTS IN MALAWI: CHARITY-BASED, RIGHTS-
BASED AND LEGAL APPROACHES
3.1 Human rights discourses in Malawi: Giving meaning to ‘human rights’
In this chapter I discuss human rights discourse in Malawi and how the concept of ‘human
rights’ has been used and interpreted by local actors. In Malawi there is a struggle between
what Merry calls “the generalizing strategies for transnational actors and the particularistic
techniques of activists working within local contexts”.967 There are no easy answers for
solving these struggles, but I do think it is time to strengthen the local voices that are experts
on the contexts within which they live and work.
However, during my field research I was shocked by the paternalistic attitudes the urban elite
had towards rural Malawians. There was very little solidarity or commitment to making
changes in social justice. Englund points out that lack of commitment to social justice is partly
explained by the relative absence of radical ideologies among the intelligentsia.968 Whether
human rights have the potential to become a radical ideology that would challenge the status
quo remains to be seen.
3.1.1 Second liberation: Commitment to a multiparty democracy, human rights, and a
market economy
“The issue of human rights is a new thing to Malawi. And sometimes it brings a
lot of confusion, fears, it’s natural.”969
In the following I will give a brief overview of the historic developments behind a formal
commitment to human rights and multiparty democracy. This overview of the Malawian
human rights discourse focuses on a limited time period, starting from the ‘second liberation’
in the early 1990s to 2006 when I conducted my field research.
Malawi was ruled by one of the most repressive regimes in Africa after independence in 1964.
Dr Hastings Kamuzu Banda had established an autocratic leadership system, making himself
the undisputable leader. Despite brutal violations of human rights, Banda was generously
supported with Western aid during the cold war because of his strict anti-communist stance.
Around 1991, pressure groups against Banda were founded and in 1992 Banda saw no other
way than to call for a referendum on the question of whether a multiparty system of
government should be introduced or not.970
Neither of the two largest churches had been known for being critical of the Banda regime.
However, through personal contact between opposition activists and the Catholic Bishops, the
Catholic clergy was approached and a Pastoral Letter was read in Catholic churches
throughout the country in 1992, publicly criticising the regime for its poor human rights
967
Merry, Human Rights and Gender Violence, supra note 287, at 103.
968
Harri Englund, Human Rights and African Airwaves: Mediating Equality on the Chichewa Radio
(Bloomington: Indiana University Press, 2011) at 5.
969
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
970
Heiko Meinhardt and Nandini Patel, Malawi’s Process of Democratic Transition: An Analysis of Political
Developments Between 1990 and 2003 (Lilongwe: Konrad-Adenauer-Stiftung, 2003) at 3, 5, 9-10.
148
record, lack of democratic rights,971 and Malawi’s ‘climate of mistrust and fear’.972 This was
mentioned often by my informants as an important mile stone in the Malawian human rights
movement.
In a referendum held on 14 June 1993, two-thirds of Malawians voted for a multiparty
democracy. The Banda regime did not concede defeat but the momentum behind the
democratic movement was stronger than Banda had calculated. Two weeks later the Malawi
Parliament, which had been restricted to the ruling Malawi Congress Party (MCP) for 29
years, repealed Section 4 of the Constitution to allow opposition parties. A National
Consultative Council and a National Executive Council were set up to examine the
Constitution and the electoral process. Opposition groups and the Malawi Law Society made
requests for assistance from international legal experts on constitutional law, the electoral
process and a Bill of Rights, and to advise on constitutional and legal reform.973
Amnesty International called for human rights guarantees in the Constitution to “provide the
framework for the institutionalization of human rights safeguards”, based on relevant
international and regional human rights standards,974 and consequently a democratic
constitution was drafted within a few months, with considerable input from foreign experts.975
The international community had become interested in human rights and good governance
rather than simply anti-communism976 and the democratisation process was encouraged by
Western donors, but this only partly explains why Banda accepted the democratic transition,
which was carried out in a reasonably peaceful way. Other factors such as age and illness of
the president as well as the military’s unwillingness to participate in repressive actions against
the opposition movements were also important.977
The 1994 elections were won by the United Democratic Front (UDF) and Bakili Muluzu, a
former servant of the old regime, was elected president.978 There was no doubt that both in the
1993 referendum and in the General Elections of 1994 Malawians voted for change. However,
it was far from clear what this change would involve other than the replacement of Banda and
his loyalists. The fundamental socio-economic structures remained tightly in place, the
politics of patronage continued and attempts to address massive poverty remained at the level
of rhetoric.979
The 1999 elections were again won by the UDF,980 led by President Muluzi. Five years later
there was an outcry among civil society at Muluzi’s attempt to stand for an unconstitutional
third term,981 and finally the 2004 Presidential election was won by Bingu wa Mutharika, as
the candidate of the UDF. Mutharika was handpicked by Muluzi, who hoped he would follow
his directives. In early 2005, Mutharika announced he was leaving the UDF and forming a
971
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 8.
972
Harri Englund, “The Dead Hand of Human Rights: Contrasting Christianities in Post-Transition Malawi”, 38
Journal of Modern African Studies (2000) 579-603, at 584.
973
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 12.
974
Amnesty International, “Amnesty International’s Recommendations for Permanent Protection of Basic
Human Rights Following the Pro-Democracy Vote”, Document – Malawi, September 1993 (AI Index AFR
36/31/93). Available at www.amnesty.org, visited 14 May 2012.
975
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 12.
976
Kings M. Phiri and Kenneth R. Ross, “From Totalitarianism to Democracy in Malawi”, in K. M. Phiri & K.
R. Ross (eds), Democratization in Malawi: A Stocktaking (Blantyre: Christian Literature Association in Malawi,
1998) 9-20. at 11.
977
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 11.
978
Ibid.
979
Phiri and Ross, “From Totalitarianism to Democracy in Malawi”, supra note 976, at 12.
980
African Elections Database. Available at http://africanelections.tripod.com/mw.html, visited 20 August 2012.
981
See Englund, Human Rights and African Airwaves, supra note 968, at 6.
149
new party called the Democratic Progressive Party (DPP).982 The formal commitment to
human rights, made by the new government, seemed to soothe the donors’ anxieties
concerning the level of Malawi’s democratic reform.983 Food security became one of
Mutharika’s priorities, and policies in favour of smallholder famers, such as input subsidies,
made him popular.984
At the time of my field research, at the end of 2006, human rights were very much part of an
official discourse. Human rights were referred to in newspapers, on the radio, in public
speeches by politicians and by government officials whom I interviewed. I share Englund’s
observation that the values of multiparty democracy, human rights, and a market economy are
seemingly shared values. What all political parties in Malawi share since the transition to
multiparty system of government, is commitment to liberalism in both politics and the
economy. What distinguishes the parties is their regional base of popular support.985
3.1.2 ‘Freedom’ discourse
There seems to be agreement that the major difference between the old and new eras is the
greater extent of ‘freedom’ – ufulu.986 Ufulu is Chichewa, which is the sole national language
of Malawi and one of seven national languages of Zambia and has been offered as a
translation of ‘human rights’.987 For local human rights discourse it is problematic that the
entire human rights discourse has been embodied in the European linguistic idiom. Going
deeply into the question of the role of imperial languages in the promotion of human rights
awareness in Africa988 in general and Malawi in particular is, however, beyond the scope of
this chapter. It is sufficient to know that ufulu underlines freedoms rather than entitlements.
A longer version is ufulu wachibadwidwe, in which ufulu refers to ‘freedom’, ‘liberty’, and
‘independence’ while the adjectival wachibadwidwe, using the verb kubadwa which means
‘to be born’, and thereby hinges on the individual’s birth right. Englund refers to a Malawian
linguist, Pascal Kishindo, who has suggested that ufulu wachibadwidwe is actually a new
coinage.989 Nevertheless, ufulu was used by most human rights actors in Malawi and also by
researchers describing human rights discourse in the country. I have, however, not found any
research on the origin of the ufulu concept. Englund has, during extensive periods of field
research in Malawi and Zambia, not been able to trace the authorship of ufulu.990 Orally I
have been informed by Malawians that mfulu actually is a more accurate description of the
human rights idea, and is seen as something that has been part of Malawian culture long
before the ‘second liberation’.991 The fact that the name of the Malawi Human Rights
982
Lisa Gilman, The Dance of Politics: Gender, Performance, and Democratization in Malawi (Philadelphia:
Temple University Press, 2009) at 185-186.
983
Englund, “The Dead Hand of Human Rights”, supra note 972, at 582.
984
Englund, Human Rights and African Airwaves, supra note 968, at 7.
985
Harri Englund, “Introduction”, in H. Englund (ed.), A Democracy of Chameleons: Politics and Culture in the
New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 11-24, at 11-12.
986
Englund, “The Dead Hand of Human Rights”, supra note 972, at 583.
987
Englund, Prisoners of Freedom, supra note 414, at 49.
988
Alamin M. Mazrui, “Globalism and Some Linguistic Dimensions of Human Rights in Africa”, in P. T. Zeleza
& P. J. McConnaughay (eds), Human Rights, the Rule of Law, and Development in Africa (Philadelphia:
University of Pennsylvania Press, 2004) 52-70, at 56.
989
Englund, Prisoners of Freedom, supra note 414, at 49. See also Pascal Kishindo, “Evolution of Political
Terminology in Chichewa and the Changing political Culture in Malawi”, 9 Nordic Journal of African Studies,
(2000) 20-30.
990
Englund, Prisoners of Freedom, supra note 414, at 50.
991
These discussions took place in Copenhagen in November 2011 when I presented an earlier draft of this
chapter in conjunction with a workshop that was part of the Future of the Nordic Development Research
150
Commission Bulletin is Mfulu shows that these terms are used in parallel, but with ufulu being
more dominant.
Many Malawians also use ufulu to describe liberalism ‘gone wild’, characterised by disrespect
by youths against elders, immoral dress code, disobedience and political disunity.992 One of
Thoko Kaime’s informants relates this to the individual focus of, in this case, children’s
rights:
These freedoms that children are said to have nowadays are good but sometimes
they cause problems. The unity and peace that was in the family is now gone and
parents have no freedom any more... According to our culture everyone should be
similarly treated.993
Such accounts seem to indicate that there has been little discussion about the content of the
human rights concept itself and how that fits into the lived reality of Malawian children,
women, and men. Englund makes the argument that the notions of rights and freedoms have
come to be defined in a particular way in Malawi, steered by foreign donors and
creditors,994 that is, ‘from above’. One example of donor influence is the Malawi Human
Rights Resource Centre (MHRRC), established in 1997 by the Danish Centre for Human
Rights as a project with the “objective to strengthen the implementation of human rights
standards in Malawi.”995 Although the MHRRC consisted exclusively of Malawian staff
members, and seen as an obvious advantage by the funding Centre, concern was raised in an
early evaluation report that “a ‘Malawi way’ of doing things is acceptable only when it is in
line with international norms and standards. It becomes the ‘wrong’ way, however, when it
is not.”996
According to this line of reasoning, localised human rights discourses should be in line with
how human rights are defined in international legal documents and there should be no room
for too much vernaculisation. On this issue we should, however, be careful in drawing
conclusions. It is clear that local activists, politicians, journalists and, religious leaders have
eagerly participated in the process of giving meaning to the ‘human rights talk’ in Malawi,
and it would be an oversimplification to say that human rights represent a Northern
agenda.997 Rather, human rights discourse has been dominated by elites that have close
connections to donor representatives. (Regarding the role of donors, there is also the
perspective that was presented in some of my interviews with local human rights activists
that foreign donors have avoided rights talk and been more comfortable in ‘welfare
issues’.998)
Conference. I am grateful to Dr. Desmond Kaunda for pointing out the parallel usage of ufulu and mfulu in the
Malawian human rights discourse.
992
Englund, “The Dead Hand of Human Rights”, supra note 972, at 583.
993
Referred to in Kaime, “The Struggle for Context”, supra note 492, at 48. Emphasis added.
994
Englund, Prisoners of Freedom, supra note 414, at 5.
995
Evaluation Report, The Malawi Human Rights Resource Centre, prepared by South Consulting for The
Danish Centre for Human Rights (Copenhagen: Danish Centre for Human Rights, 2000) at 3.
996
Ibid., at 36.
997
See Englund, “The Dead Hand of Human Rights”, supra note 972, at 580.
998
Interview No. 19 with NGO, Malawi 2006. FSD2727. DFID had a programme called “Transform: Through
Rights to Needs for Marginalised Malawians (2001-2003)” that was suspended in 2003 at the request of
government. The main reason for closure was “an underestimation of the sensitivity of the project.” See Chris
Barnett et al., “Evaluation of DFID Country Programmes: Country Study Malawi 2000-2005”, April 2006, at 32.
Available at http://www.oecd.org/dataoecd/29/9/36721050.pdf, visited 15 May 2012.
151
However, looking at the legal framework and official discourse, human rights have been
defined in a rather narrow way in Malawi, with the primary focus on so called civil and
political rights. One of my informants explains:
The reception of human rights here after democratization was clearly a transition
first and foremost for political and civil rights. The excitement was on the
freedoms rather, … freedom of speech, association, to participate in politics, to
vote, to be voted into office, that was what the Malawians accepted that these are
the rights. Economic, social and cultural rights have somehow been a bit hidden,
they are there, we can talk about them but they are not as exposed as civil and
political rights. So when we go to the people and we ask which rights are you
concerned about they talk of those freedoms. Maybe because they were the rights
that were more suppressed during the authoritarian regime because it was very
strong on political participation, it tried its best to shot people out. Maybe that’s
why we are now in this stage, when we talk of economic, social and cultural
rights, do people appreciate and understand them?999
There has been efforts by certain NGOs and the Malawi Human Rights Commission to
include economic, social, and cultural rights in human rights discourse,1000 but also in the
context of these rights, focus has been on the ‘freedom side’ rather than the ‘entitlement side’.
To exemplify how a narrow understanding of rights as ‘freedoms’ has come to dominate
human rights discourse, Englund has analysed translations of human rights instruments from
English to Chichewa, the main local language in Malawi. That the Chichewa translation of
human rights as ‘birth freedoms’ (ufulu wachibadwidwe)1001 does not commit itself to the
entitlement aspect of human rights is particularly revealing in the case of economic and social
rights. The English translation of the Chichewa version of Article 22 of the Universal
Declaration of Human Rights (1948) reads as follows:
Everyone has the freedom to get assistance from the state when well-being is
undermined in accordance with the extent to which the state can assist, as well as
the freedom of economic activity and of what helps him/her to foster respect,
development in life and his/her humanity.1002
When compared with the original version of Article 22,1003 it is obvious that there is a
mismatch. Englund goes further and says that the translation fails to convey any “empowering
notion that could be deployed to challenge social and economic inequalities.”1004 Since few
Malawians have the opportunity to compare the texts they are given by civic educators with
the original, human rights discourse risks becoming an “alienating novelty and a
disempowering discourse.”1005 Through civic education and other human rights and
999
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1000
See e.g. The Malawi Human Rights Commission Bulletin Mfulu, of July 2006, with focus on economic,
social and cultural rights. Available at http://www.malawihumanrightscommission.org/docs/mfulu_july2006.pdf,
visited 15 December 2011. The theme of the MHRC on International Human Rights Day in 2006 was “fighting
poverty is an obligation, not charity”. Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi
2006. FSD2727.
1001
Englund, Prisoners of Freedom, supra note 414, at 22.
1002
Ibid., at 59.
1003
“Everyone, as a member of society, has the right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his dignity and the free development of his
personality.” Universal Declaration of Human Rights, UNGA res. 217 A (III) of 10 December 1948.
1004
Englund, Prisoners of Freedom, supra note 414, at 59.
1005
Englund, Prisoners of Freedom, supra note 414, at 60.
152
democratisation projects, well-meaning human rights groups used the notions of freedom,
democracy and human rights to confine the scope of what could be discussed.1006 This is
characteristic of a human rights discourse that, in the words of Jim Ife, defines rights for ‘the
powerless by the powerful’,1007 and where there is little input ‘from below’ since the agenda
has been set ‘from above’.
Englund’s critique of the human rights civil society in Malawi (as an elite movement
upholding the status quo and current power relationships in a manner that is depoliticising
human rights) has to be taken seriously, not the least because his findings are based on years
of ethnographic fieldwork and command of Chichewa.1008
3.1.3 Local reactions to official human rights discourses
Ulrika Ribohn, another ethnographer, who has studied the changes that the ‘freedom
discourse’ has brought about in Malawi, observes that during the Banda era relations between
categories of men and women, and political institutions were defined in ‘traditional’ terms,
stressing ‘traditional’ institutions. This has been redefined as the UDF government and
official human rights discourses having defined traditional ‘culture’ as violating human
rights.1009 However, people react against attempts to portray their ‘culture’ in these terms
(violator/violated). Ribohn has studied how ordinary Malawians continue to seek dignity and
respect through “culturally salient notions of what it entails to be a “good man” or a “good
woman”’. Her research shows how local values are excluded when human rights are
positioned in opposition to ‘traditions’.1010 Official arguments are interpreted locally as
attempts to change ‘culture’ in a top-down manner.1011
Ribohn’s starting point is that Malawians’ understanding of human rights is rather different
from the universal intentions of the United Nations. She sees a clash between the local
“manifestations of transnational agendas” and local reactions to these agendas. This clash is
particularly strong in relation to cultural values and women’s rights. The official human rights
discourses used by government organisations and so called civil society argue that cultural
values have to change in favour of human rights implementation.1012 My argument is that this
is what happens when human rights rhetoric is imposed from above, as ready-made concepts
defined by transnational legal documents and actors, without a meaningful dialogue about the
human rights concept itself.
Thoko Kaime, who has also done ethnographic research in Malawi, portrays a nuanced
picture of human rights principles, such as non-discrimination, in action in the lives of
children and adults in two villages in Thyolo district.1013 He finds that the principles of the
African Children’s Charter are not only based on children’s rights discourse but also on “an
1006
Englund, Prisoner of Freedom, supra note 414, at 10.
1007
Ife, Human Rights from Below, supra note 8, at 126.
1008
With regard to the criticism by Englund, Hans-Otto Sano asks whether the criticism can be generalised to the
majority of Malawian NGOs. Sano, “Does Human Rights-Based Development Make a Difference?”, supra note
55, at 67.
1009
For examples of the official rhetoric see e.g. article in The Malawi Human Rights Commission Bulletin
Mfulu, “Time is ripe to get rid of harmful cultural practices”, March 2006. Available at
http://www.malawihumanrightscommission.org/docs/mfulu_march2006.pdf, visited 15 December 2011.
1010
Ulrika Ribohn, ‘“Human Rights and the Multiparty System Have Swallowed our Traditions”: Conceiving
Women and Culture in the New Malawi”, in Harri Englund (ed.), A Democracy of Chameleons: Politics and
Culture in the New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 166-177, at 177.
1011
Ibid., at 175.
1012
Ibid., at 166.
1013
Kaime, “The Struggle for Context”, supra note 492, at 36.
153
eclectic mix of cultural, religious and spiritual agreements. Consequently, non-discrimination
perspectives are not the preserve of ‘ajenda’ or human rights advocates alone but also that of
ordinary people who claim no special knowledge of children’s rights.”1014 Kaime underlines
the importance of “existing cultural logics and categories in the acceptance or rejection [...] of
introducing ‘new’ principles”. Kaime’s research suggests that people seek ways of
“combining their conceptions of family practice and children’s rights norms”, and in this
process, “they not only redefine their cultural landscape but also redefine the international
children’s rights corpus itself.” He advises to not essentalise “culture or children’s rights as
constituting strict categories”. Instead he calls for practices in which children’s rights are not
formulated as abstract forms but located in “specific, concrete experiences derived from the
lives of children and their families.”1015 Ribohn’s research suggests that ‘culture’ has been
given a static and essentialised meaning by authorities and villagers in Malawi,1016 and maybe
that is why there seems to be such a sharp clash between ‘culture’ and official human rights
discourses. Kaime’s research suggests that there does not need to be a clash between these
two worlds if only mutual redefinition is allowed and accepted.
3.1.4 Civic education
The main method of introducing international human rights into the consciousness of
Malawians has been awareness raising and human rights education. The assumption has been
that if people only knew their rights they would start claiming them.1017 So called civic
education has been seen as a way to “enlightening ordinary men and women about their
rights, responsibilities and duties in relation to their government, with special emphasis on
their rights and freedoms vis-à-vis government authority and power.”1018 In practice, it has
been NGOs rather than government institutions that have carried out civic education
activities.1019
In 1994, Amnesty International reported that “human rights activists are launching a human
rights training program for Malawi with a symposium”, organised by the Malawi Public
Affairs Committee and funded by AI. Participants included religious leaders, human rights
groups, and lawyers. The symposium was a first step towards a national training workshop for
human rights educators.1020 The strong focus on human rights education has later been
criticised for having had limited impact also from within the civil society human rights
movement itself: “All what the NGOs have done is to preach the language of rights and they
have done that in the context of sensitization of the communities, rights education. It has been
1014
Kaime, “The Struggle for Context”, supra note 492, at 43.
1015
Kaime, “The Struggle for Context”, supra note 492, at 65-66. Emphasis added.
1016
Ribohn, ‘“Human Rights and the Multiparty System Have Swallowed our Traditions”’, supra note 1010, at
170.
1017
The following extract from an interview in Mfulu, the Malawi Human Rights Commission Bulletin,
exemplifies this assumption: “The only way to stop human rights abuses against women is to have them
empowered with knowledge of their rights and to enact legislation that can address loopholes that expose women
to abuse.” “Poverty and illiteracy block women empowerment” in Mfulu, of July 2006, at 2. Available at
http://www.malawihumanrightscommission.org/docs/mfulu_july2006.pdf, visited 15 December 2011.
1018
Ralph Kasambara, “Civic Education in Malawi Since 1992: An Appraisal”, in K. M. Phiri & K. R. Ross
(eds), Democratization in Malawi: A Stocktaking (Blantyre: Christian Literature Association in Malawi, 1998)
237-251, at 237.
1019
Ibid., at 251.
1020
Amnesty International, News service: “Malawi – Human Rights Symposium”, 1 August 1994. AI Index AFR
36/WU 05/94. Available at www.amnesty.org, visited 14 May 2012.
154
in a context of preaching the word, like preachers standing on a podium.”1021 Having the role
of passive listeners taking in knowledge from outside experts is not very empowering.
Englund has analysed civic education on human rights and democracy carried out by the EU
funded project National Initiative for Civic Education (NICE) in Malawi. His findings
exemplify the challenges experienced by human rights awareness raising. In the civic
education meetings the officers explained about multiparty democracy and its ‘cornerstones’:
tolerance, citizens’ participation, free and fair elections, human rights, the rule of law, and
transparent leadership. There was no attempt to find out to what extent these so called
cornerstones resonated with the experiences of the people present at the meeting. The
participants were expected to accept them as given definitions. The implied message was that
the transition from the one-party regime of the MCP, that ended not many years before NICE
entered into the country, had already taken place.1022
Englund’s research questions the transformative role of so called civil society, a potential role
that was celebrated in the early 1990s by numerous observers of African politics. The
enthusiasm of the 1990s has faded and more critical accounts have emerged, highlighting the
problems with overly romanticised notions of the role of civil society.1023 Moreover, in
Malawi there was an influx of NGOs in 1993-94, more particularly human rights NGOs.1024
Malawi churches, that played a central role in the removal of the Banda regime, remained
relatively active in Malawian politics also after the transition to a multiparty government.1025
The Church and NGOs have worked so closely together on human rights issues that they, in
some cases, have become virtually indistinguishable.1026 Churches have been part of the ‘civic
education movement’, but research shows that there were significant limits to their grassroots
civil society activism.1027 Peter VonPopp draws the conclusion that churches, at the
grassroots, “may very well be agents of the status quo, rather than advocates for change in
state-local power relations.”1028 This is a relevant conclusion when reviewing the Right to
Food Project, which was initiated by a church-based human rights organisation.
It is not only civil society organisations that have conducted civic education on democracy
and human rights. Institutions such as the Ombudsman and the Malawi Human Rights
Commission also have ‘public awareness’ on their agendas. Again, the Danish Centre for
Human Rights (DCHR) has been a major funding agency. With money from the DCHR the
Ombudsman Office conducted workshops aimed at District Development Committees, and
District Executive Committees (DEC); workshops with civil servants in ministries, military
and the police; workshops for the media; a workshop with Principal Secretaries and Judges
during the period of 1996-2000.1029 In an evaluation report, lack of training in law and human
rights among the staff of the Ombudsman Office itself was, however, noted as a major
1021
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1022
Englund, Prisoners of Freedom, supra note 414, at 108.
1023
Peter VonDoepp, “Are Malawi’s Local Clergy Civil Society Activists? The Limiting Impact of Creed,
Context and Class”, in Harri Englund (ed.), A Democracy of Chameleons: Politics and Culture in the New
Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 123-139, at 123.
1024
Interview No. 29 with Malawi Resource Center for Human Rights, Malawi 2006. FSD2727.
1025
See also Englund, “The Dead Hand of Human Rights”, supra note 972.
1026
Ibid., at 586.
1027
VonDoepp, “Are Malawi’s Local Clergy Civil Society Activists?”, supra note 1023, at 123-124.
1028
Ibid., at 137.
1029
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi (Copenhagen, Danish Centre for
Human Rights, 2000) at 71.
155
problem. Of all staff members employed at the time of evaluation, only the Ombudsman
himself and Chief Legal Officers had legal qualifications.1030
It seems that the agencies that have been funding most of the human rights related activities in
Malawi since the transition to multiparty governance are eager to support the growing interest
in freedoms, ufulu. There is, however, concern for the lack of capacity and knowledge in
international human rights standards – and more training for the staff of the institutions and
civil society organisations on the legal dimension of human rights as well as more ‘civic
education’ for the general public has been seen as the solution. There has been less discussion
on how feasible it is to adopt a legalistic understanding of the human rights concept in a
country such as Malawi, with about 500 lawyers and a large, largely rural population with
little official schooling. Initiatives that would investigate the intersection between everyday
lived realities and human rights, calling for human rights as cultural practice located in
specific local contexts, are rare.
3.1.5 The right to food in the legal framework of Malawi
Chirwa writes that “[e]conomic, social and cultural rights have suffered from lack of
constitutional protection in Malawi since colonial times.”1031 The first written Constitution,
adopted in 1964 at the time Malawi gained independence from Britain, included no socio-
economic rights. The 1964 Constitution did guarantee civil and political rights and the right to
property. Two years later, it was replaced by a second constitution, designed to transform
Malawi into a republic. In the 1966 Constitution, human rights were only mentioned in
passing in section 2(1)(iii) that included a reference to the UDHR. However, in 1968 there
was already a constitutional amendment stating that “nothing in or done under the authority of
law shall be held inconsistent with or in contravention of the Universal Declaration of Human
Rights”.1032 This lasted until 1992 when the first litigation invoked the provision under the
UDHR. In the Chihana v. R case1033 the Supreme Court held that the UDHR forms part of
Malawian law (referring to the 1966 Constitution). The case was about alleged interference
with the freedom of speech as a violation of the African Charter of Human and People’s
Rights. The court held that the UDHR is part of the law of Malawi, while the African Charter
is not (because Malawi has taken no legislative measures to adopt it).1034 Since this
Constitution of 1966 was repealed, and the 1994 Constitution does not make any reference to
the UDHR; some writers argue that the UDHR is no longer part of Malawian law.1035
The 1994 Constitution includes a Bill of Rights, which recognises the right to family
protection, the right to education, cultural and language rights, the right to property, the right
to economic activity, labour rights, and the right to development.1036 As we can see, the right
to food is not on this list. The right to development does, however, provide a potential, but yet
1030
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi, supra note 1029, at 52.
1031
Danwood Mzikenge Chirwa, “A Full Loaf is Better than Half: The Constitutional Protection of Economic,
Social and Cultural Rights in Malawi”, 49 Journal of African Law (2005) 207-241, at 208.
1032
Act No. 6 of 1966, introducing section 2(2) to the Constitution, as cited in Chirwa, “A Full Loaf is Better
than Half”, supra note 1031, at 209.
1033
Chakufwa Tom Chihana v. Republic, MSCA Criminal Appeal no. 9 of 1993. Chihana was a famous political
dissident. See Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 10.
1034
Thomas Trier Hansen, “Implementation of International Human Rights Standards Through the National
Courts in Malawi”, 46 Journal of African Law (2002) 32-42, at 37.
1035
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 209 and 234.
1036
Constitution of the Republic of Malawi, 1994, adopted 17 May 1995.
156
unexplored, avenue for protecting many of the socio-economic rights, including the right to
food, not expressly mentioned in the Bill of Rights.1037
Section 30 reads:
1. All persons and peoples have a right to development and therefore to the
enjoyment of economic, social, cultural and political development and women,
children and the disabled in particular shall be given special consideration in the
application of this right.
2. The State shall take all necessary measures for the realization of the right to
development. Such measures shall include, amongst other things, equality of
opportunity for all in their access to basic resources, education, health services,
food, shelter, employment and infrastructure.
3. The State shall take measures to introduce reforms aimed at eradicating social
injustices and inequalities.
4. The State has a responsibility to respect the right to development and to justify
its policies in accordance with this responsibility.
This section is interesting from many perspectives. First, it refers to “women, children and
disabled” as groups to be given special consideration in the application of the right to
development, indicating that their vulnerability calls for special measures. Second, there is no
reference to ‘progressive realisation’ and ‘available resources’ as is the case of state
obligations under the ICESCR, to which Malawi is a party.1038 Instead it is stated that “the
State shall take all necessary measures for the realization” of this right, which potentially
implies far-reaching positive obligations. Third, an element of equality and non-
discrimination (expressed as “equality of opportunity”) enters in relation to access to basic
resources, including food and employment. Forth, positive measures (‘reforms’) aiming at the
“eradication of social injustices and inequalities” again gives the impression of extensive
positive obligations on the part of the state. Lastly, the state has to justify its policies in
accordance with the responsibility to respect the right to development.
All of the sub-paragraphs, and especially the last one that refers to policy coherence, are
powerful statements. It is surprising that civil society groups have not made use of Section 30
in their advocacy or litigation efforts. (“Again in the past years the least attention has been on
Section 30 of our Constitution which is the right to development in the broadest sense. I don’t
recall any grouping testing that provision of the Constitution out.”)1039 This is partly explained
by a conservative Supreme Court: the majority of the judges do not view economic and social
rights to be justiciable and the major focus of the judiciary since 1994 has been on civil and
political rights.1040
Chirwa argues that section 30(2) can be regarded as guaranteeing access to basic resources
such as food, and he refers to the Supreme Court’s view in Gwanda Chakuamba & Others
that “human rights provisions in the Constitution should be construed broadly and
purposively.”1041 Section 30 shows that positive obligations and entitlements are not
1037
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 224-225.
1038
Malawi ratified the ICESCR in 1994 but has not yet submitted its first periodic report.
1039
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1040
Dan Banik, “Human Rights for Human Development: The Rhetoric and the Reality”, 30 Nordic Journal of
Human Rights (2012) 4-35, at 30-31.
1041
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 225. Referring to the case Gwanda
Chakuamba & Others v. The Attorney General & Others, M.S.C.A. Civil Appeal no. 20 of 2000.
157
completely absent in Malawi, only marginalised both in the legal framework and in the
popular human rights rhetoric that has focussed on ‘freedoms’.
3.1.6 Concluding remarks
Civic education has been the main mode of ‘sensitising’ the Malawian public to issues such as
human rights and democracy. In civic education, participants are expected to take ‘human
rights’ as given concepts and therefore there has been very little dialogue about the meaning
and value of human rights. Introducing human rights as expert knowledge imposed ‘from
above’ (by the powerful for the powerless1042) in a country that recently has changed from an
authoritarian regime to a multiparty form of government is not very respectful of the lived
realities of the actors involved. In the best case, such practices are only isolated examples of
bad pedagogy.
The role of donors as supporters of ‘freedoms’ is somewhat unclear, but it seems that they
have been eager to support civic education as well as legal capacity building for the
authorities.
Although ESC rights are marginalised in the discourse as well as in the legal framework,
Section 30 of the Constitution, which guarantees the right to development, is surprisingly
strong, underlining the entitlement dimension and positive obligations, i.e., issues that have
been given less attention in the official ‘freedom discourse’. Why civil society actors have not
used Section 30 more in advocacy is unclear.1043 This shows that a legal approach to food
insecurity, in which claims would be based on legal rights, is not developed. There is no
conscious effort to put legislation, policy, and practice in place that would support the
realisation of the right to adequate food. Before analysing whether the Right to Food Project
fills this gap I will explore the role of human rights in the development community’s
conventional approach, i.e., providing food assistance to needy beneficiaries.
3.2 Food assistance: A charity-based service
This section is an analysis of one particular food assistance programme in Malawi
implemented by the World Food Programme (WFP)1044 and its NGO partners. The purpose is
to identify the role of human rights and to understand the principles according to which food
assistance programmes are managed, not to evaluate the effectiveness in reaching the intended
beneficiaries. What role, if any, is the right to food playing? Is food assistance seen as a
service that is a matter of fulfilling the obligations under the right to food (i.e., providing a
mandatory service to rights-holders who have been selected based on clearly defined criteria)
or as charity (i.e., a favour that may or may not be provided to beneficiaries based on more or
less arbitrary criteria)? Emphasis is also put on understanding the role and meaning of the
‘good development practice’ principles of non-discrimination, accountability, participation,
and empowerment.
1042
See Ife, Human Rights from Below, supra note 8, at 126. Ife claims: “Human rights remain largely a
discourse of the powerful about the powerless, and this is itself a human rights abuse: a denial of the right to
define one’s rights.”
1043
In 2012 I was told that NGOs are working towards a test case concerning socioeconomic rights. E-mail
interview with Church and Society, August 2012.
1044
Food aid distributed by the WFP reaches about 100 million people worldwide annually. Food and
Agriculture Organization of the United Nations, The State of Food and Agriculture 2006: Food Aid for Food
Security? (Rome: FAO, 2006) at 4.
158
3.2.1 Introduction
We occasionally feed people when they run out of stocks. And for some this is a
yearly event. We make up the four months that people come short. Every year
about 25 percent [of the Malawians] are chronically food insecure, so those are
always there. There’s always need, but that’s controllable need.1045
Food aid has been an important part of international development cooperation and
humanitarian aid since the post-Second World War Marshall Plan.1046 It is thereby one of the
oldest forms of foreign aid – and at the same time one of the most controversial. This is
mainly because food aid involves issues of trade and agricultural policy in donor as well as
recipient countries, but also because some development specialists have worried that food aid
can destabilise local markets, create disincentives for producers and traders, and undermine
the resilience of food economies. In a world that, in theory, produces more than enough food
to feed everyone, nothing seems more obvious than giving food to hungry people, but yet this
apparently benevolent response has attracted extensive criticism.1047 The purpose of this
chapter is not to review evidence for or against any of these arguments, but it is important to
be aware that food aid is far from unproblematic.
The WFP is one of the few UN agencies that has not adopted a so called human rights-based
approach – despite former Secretary General Kofi Annan’s request in 1997 to integrate human
rights into all activities of the organisation.1048 One reason for this might be the general
tendency in food aid to adapt to immediate needs and ‘practical problems’ as they emerge.1049
Service delivery (food commodities), where targeting is based on needs, is characteristic of
this approach: “Food will be targeted at the right time to the neediest countries, to the neediest
populations in food-insecure areas (geographic targeting) and to intended beneficiaries.”1050
This quote demonstrates the simple logic behind food aid in general and the existence of the
WFP in particular; in times of crisis, food will be distributed to those most in need of
assistance (the most vulnerable households) so that they can live through the crisis and
hopefully recover. The objective is to save lives.1051 In Malawi, disasters have become annual
events and even in a year with an exceptionally good harvest, which was the case in 2006,
there were areas where people suffered from hunger.1052
In order to limit the scope of the analysis, focus is placed on the Joint Emergency Food Aid
Programme (JEFAP). This programme was initiated during the food crisis of 2002/2003 by
the Government of Malawi, donors, the WFP and NGOs.1053 In late 2006, at the time that I
was conducting field research, there were three programmes under the JEFAP: (1) HIV/AIDS
programme where food was distributed to households with chronically sick patients or
1045
Interview No. 30 with donor, Malawi 2006. FSD2727.
1046
Edward Clay and Olav Stoke, “The Changing Role of Food Aid and Finance for Food”, in E. Clay and O.
Stokke (eds), Food Aid and Human Security (London: European Association of Development Research, 2000)
13-54, at 17.
1047
FAO, The State of Food and Agriculture 2006, supra note 1044, at 3.
1048
See “Renewing the United Nations: A Programme for Reform”, 14 July 1997. UN doc. A/51/950.
1049
Clay and Stoke, “The Changing Role of Food Aid and Finance for Food”, supra note 1046, at 17.
1050
World Food Programme, Executive Board Second Regular Session, Consolidated Framework of WFP
Policies, An Updated Version, Rome 22-27 October 2007, para. 11. Available at http://www.wfp.org/
sites/default/files/wfp137486~2.pdf, visited 14 May 2012.
1051
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006; Interview
No. 4 with WFP, Malawi 2006. FSD2727.
1052
The maize production in 2006 was 113 percent higher than the previous season. See UN Malawi
Humanitarian Situation Report, July 2006. Available at http://www.unmalawi.org/reports/Sit_reports/
UN_SitRep01Aug2006.pdf, visited 10 May 2012.
1053
WFP/NGO Partnership, Malawi, November 2006.
159
orphans; (2) food-for-asset (FFA) programmes where community members created assets in
return for food; (3) targeted food distribution for asset creation to help those lacking food over
the ‘hunger months’.1054 The emergency intervention in 2006 was small-scale (targeting about
one million people) compared to the foregoing season of 2005/06 when five million
Malawians where missing food entitlements.1055 Moreover, the WFP in Malawi was also
implementing a long-term school feeding programme and a therapeutic feeding programme
for malnourished children.1056 In the following, focus is placed on the food-for-asset
programmes. During the field research in Malawi I met with WFP staff, NGOs, the major
donors to the WFP and with government representatives.
3.2.2 Food aid as part of the right to food
In order to understand the role of human rights in food assistance programmes, we must first
establish what human rights law says about food aid. Do people suffering from hunger have
not only a moral but also a legal right to receive support? As we know the right to adequate
food is guaranteed in Article 11 of the ICESCR,1057 but this article is silent on food aid. The
Committee on Economic, Social and Cultural Rights has, however, in General Comment No.
12 on the Right to Adequate Food made clear that the obligation to fulfil (provide) means that
State Parties to the Covenant should provide directly for this right whenever an individual or
group is unable, for reasons beyond their control, to enjoy the right to food. The Committee
then refers to victims of natural or other disasters.1058 The Special Rapporteur on the right to
food states that it may be necessary, as a last resort, for governments to provide direct
assistance to those in need through safety nets such as food voucher schemes or social
security provisions to ensure freedom from hunger.1059 Food aid is, in other words, one way
for a government to fulfil its minimum obligations under the right to food.
The State is in violation of the Covenant if it fails to ensure the satisfaction of, at the very
least, the minimum essential level required to be free from hunger. Should the State’s
resources not be sufficient, it has to seek international support to ensure the availability and
accessibility of the necessary food.1060 The primary responsibility to prevent famine and
hunger always rests with national governments, but all other governments should, according
to the Special Rapporteur, refrain from taking action that cause food insecurity and to respond
to requests for emergency assistance.1061 There is, however, no agreement among states that
there is a legal obligation to provide food aid and the matter remains controversial.1062 It is
important to keep in mind that food aid is also legally regulated in other instruments, which
are unrelated to human rights law. For example, States Parties to the Food Aid Convention
1054
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1055
In December 2005 the Malawi Vulnerability Assessment Committee (MVAC) released its final figures,
which indicated that there had been an increase in the population at risk from 4.2 to 5 million. See Malawi
Humanitarian Situation Report by the UN Disaster Management Technical Working Group, December 2005.
Available at http://www.unmalawi.org/reports/Sit_reports/UN_SitRep8dec2005.pdf, visited 10 May 2012.; See
also UN Malawi Humanitarian Situation Report, supra note 1052. Interview No. 4 with WFP, Malawi 2006.
FSD2727.
1056
Interview Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1057
Malawi ratified the ICESCR in 1994.
1058
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
1059
Report of the Special Rapporteur on the right to food, Jean Ziegler, 16 March 2006, para. 24. UN doc.
E/CN.4/2006/44.
1060
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 17. See also Report of
the Special Rapporteur on the right to food, supra note 1059, para. 37.
1061
Report of the Special Rapporteur on the right to food, supra note 1059, para. 18.
1062
See Lorenzo Cotula and Margaret Vidar, The Right to Adequate Food in Emergencies (Rome: FAO
Legislative Study 77, 2003) at 22-23.
160
“agree to provide food aid to developing countries or the cash equivalent thereof” in annual
amounts specified in the Convention.1063
The Committee on ESCR has expressed concern about the possible negative effects of food
aid. According to General Comment 12, international emergency assistance in the form of
food aid is to be provided in ways which do not adversely affect local producers and local
markets, and should be organised in ways that facilitate the return to food self-reliance of the
beneficiaries, and products included in international food trade or aid programmes must be
safe and culturally acceptable to the recipient population. Moreover, food aid should be
distributed based on the needs of the intended beneficiaries,1064 indicating that focussing on
needs is not alien to human rights thinking. The fact that the Committee, which has authority
to interpret the Covenant, refers to these issues underlines that the implementation of food aid
is a matter of human rights.
Clearly, guaranteeing that food is available also during crises situations is part of the human
rights obligations of the Government of Malawi. The questions is whether the authorities in
Malawi have accepted that food assistance activities (that are presently called ‘humanitarian
aid’ or ‘development’, depending on the type of intervention) are part of a human rights
agenda. Traditionally, there has been a clear distinction between humanitarian assistance work
and human rights work. For instance George Kent draws this line in saying that “humanitarian
assistance is mainly about service delivery, while human rights work is mainly about
advocacy in relation to governmental actions.”1065 As an example Kent mentions that when a
charitable organisation gives food to the poor this is humanitarian assistance, not human
rights work. If the same organisation is pressing the government to act on the problem, it is
doing human rights work. He adds that the task of human rights work is to ensure the
fulfilment of the government’s obligations in respect of support to the needy.1066 In Malawi
food assistance has been the government’s way of supporting ‘the needy’ (although the
motivation has been political and not related to human rights obligations). At least in theory,
the WFP and NGOs are implementing this service on behalf of the government. Therefore,
the strict line between humanitarian assistance and human rights work is difficult to maintain.
Food assistance has a human rights dimension as it is one way of guaranteeing the right to
food to those who are unable to realise this right through other means. Then of course it can
be debated whether food assistance is the most appropriate way to fulfil the ‘provide
obligation’ under the right to food.
A related question is whether the ‘international relief industry’ is designed in such a way that
the role of the national government is sidestepped. It is difficult to deny that the fact that as
donor governments often channel emergency funds through UN agencies and NGOs this has
an effect on the possibilities for the national government to live up to its human rights
obligations. This also has implications for the process of citizens holding the government
accountable, through democratic processes, for failures to respond to food crises. Alex de
Waal points out that the establishment of ‘disaster institutions’ at the UN (e.g. the WFP) has
contributed to the internationalisation of responsibility for famines (implying the retreat from
1063
Food Aid Convention, 1999, Art. IIIa. See also Cotula and Vidar, The Right to Adequate Food in
Emergencies, supra note 1062, at 31.
1064
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 39.
1065
Kent, Freedom from Want, supra note 83, at 124.
1066
Kent, Freedom from Want, supra note 83, at 124-125.
161
domestic accountability). Another side effect of foreign-run relief programmes is that they
often undermine the legitimacy of government efforts in the eyes of the public.1067
Food distribution in Malawi in 2006 was very much in the hands of donors, international
agencies and NGOs, although there was an effort to strengthen the role of the government. A
donor stated: “Last year we tried to make sure that it was the government that was owning the
food distribution. Half of the distribution was done through WFP and half through the
Department of Poverty and Disaster Management with NGOs. They were working the same
way, it was just two different channels. It was to build capacity in the government, so that
they can handle on their own the food security problems.”1068 Since donors and international
development agencies have a leading role in the organisation of food assistance it also means
they have to live up to the principles set out in General Comment 12.
3.2.3 The new food aid agenda: No free food
The methods used in food aid have changed over time in Malawi as well as elsewhere.
Distributing free food is not ‘trendy’ any longer. What used to be food-for-work, mainly road
construction, became FFA, i.e., construction of small-scale irrigation, fish-ponds etc in
exchange of food items. Some donors were also increasingly interested in cash transfers
instead of food (conditional cash transfers where people work).1069 The ambition in the FFA
programmes was to link the distribution of food commodities to asset creation and to
livelihoods. The beneficiary worked 20 days in one month for four hours a day.1070 The food
basket that was received in FFA programmes after one month’s work was 50 kg of maize, 5
kg of pulses and 2 litres of cooking oil.1071 There is no question that the level of payment was
low. The programmes were nevertheless very popular and people stood in line at registration.
In rural Malawi the opportunities to make some money are limited or none existent. “They
have an option to food-for-asset work and get a bag of maize or sorghum that can feed their
family for one month. Or they have the option to work for 30 cents a day if they’re lucky.”1072
It is true that the wage level in Malawi was and still is extremely low, and everyone who is
‘better off’ benefits from this in terms of cheap labour. Increase in the supply of casual labour
(ganyu) has depressed rural wages.1073 It is also true that through the FFA programme, people
in urgent need of food obtained it in return for work on something that was supposed to
contribute to agricultural production and therefore, in the long run, contribute to long-term
1067
Alex de Waal, Famine Crimes: Politics & Disaster Relief Industry in Africa (Bloomington: Indiana
University Press, 1997) at 70, 79, 137.
1068
Interview No. 3 with donor, Malawi 2006. FSD2727. An international evaluation report writes that “The
decision to make use of an alternative food distribution channel through the Government Voucher Scheme, side
by with the usual food aid distribution by WFP, and the subsequent decease of the WFP distribution charge, has
given rise to major reduction in the total costs of the food aid distribution.” The evaluation team further observes
that “the Government is eager to increase its responsibility into the area of food aid distribution”. See The
European Union’s Programme for Malawi, “Comprehensive Review of Stakeholders Response to the 2005/2006
Food Insecurity”, Final Report, September 2006, at 6.
1069
See Nita Pillai, “Food Aid for Development? A Review of the Evidence”, in E. Clay and O. Stokke (eds),
Food Aid and Human Security (London: European Association of Development Research, 2000) at 196-220.
1070
One NGO that I interviewed expressed that four hours a day is too much considering that this person also
needs to take care of his own fields. If a beneficiary is absent for two days he has to make for that. Interview No.
33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
1071
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1072
Interview No. 18 with WFP, Malawi, 2006. FSD2727.
1073
Eunice G. Kamwendo, “Knowledge Review and Gap Analysis: Hunger and Vulnerability in Malawi”, a
report by Regional Hunger and Vulnerability Programme, July 2006, at 6. Available at http://www.wahenga.org/
news/news_item.php?news=88, visited 6 June 2008.
162
development.1074 If it was not for food assistance programmes people would migrate to other
areas looking for food.1075 FFA programmes helped to alleviate the worst symptoms of
chronic poverty. However, it is easy to criticise them for hindering the same structures that
keeps the poor in poverty, that is, low wages.
The basic idea in FFA was that people should not just ‘receive free food’, because it was
feared this would create ‘dependency’,1076 and as we remember the General Comment on the
Right to Adequate Food makes clear aid should be organised so that food self-reliance of the
beneficiaries is ensured. One donor representative motivated this shift to food-for-asset
programmes by saying: “To get the participation by the people, to get them understand why
they are helped and not only receiving things. They have also to give something. That’s why
there are very few programmes where there is distribution for nothing.”1077
In most of my interviews a ‘hand-out mentality’ was mentioned as a widespread problem in
Malawi. Due to this ‘hand-out mentality’ it was perceived to be challenging to get a real
understanding in the communities that the FFA is an asset creation programme as much as it
is one addressing hunger. (“Everybody thinks they have a right to the food because the
government gives food every year.”1078) This brings us to the question whether the people
receiving food assistance saw themselves as subjects of charity or as rights-holders who can
demand accountable services from the duty-bearers. Food assistance is a service that, in
theory but not in practice, is a matter of fulfilling obligations under the right to food.
Therefore, people receiving assistance could potentially be in a position to make claims and
hold people in authority to account for the way food distribution is handled. This was,
however, seldom the case and it is doubtful that the ambition was to move into that direction.
I come back to the issue of demanding accountable services in the analysis of the rights-based
approach to food security.
In her investigation of the return of soup kitchens and food pantries in the early 1980s in the
USA, Janet Poppendieck puts forward the argument that the kind of charity where free food is
distributed to poor people is “a retreat from rights to gifts. Poor people might be, and often
are, very well treated in charitable emergency food programs, but they have no rights, at least
not legally enforceable rights, to the benefits that such programs provide.”1079 As long as
Malawian authorities do not view food assistance as a rights-based service, regulating it as
such, food distribution activities are part of a human rights agenda only in theory. For these
reasons I label food assistance in Malawi a charity-based service.
1074
The benefit of the assets created is sometimes contested. It is argued that, since unqualified labour is used,
there is risk that the quality of the assets may be low and little provision is made for their maintenance and
repair. In addition, simple technical solutions such as small-scale irrigation or water harvesting need
maintenance, something that is often not available in rural Malawi. See Anna McCord, “Win-win or lose? An
Examination of the Use of Public Works as a Social Protection Instrument in Situations of Chronic Poverty”,
paper presented at the Conference on Social protection and Chronic Poverty, University of Manchester, February
2005. Available at http://www.sed.manchester.ac.uk/research/events/conferences/documents/Social%20
Protection%20Papers/McCord.pdf, visited 10 May 2012.
1075
Interview No. 33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
1076
There is a big debate among scholars and organization whether food aid in fact creates ‘dependency’. Some
argue that the quantity of food aid is usually too small and the timing too unpredictable to encourage households
to rely on it. FAO, The State of Food and Agriculture 2006, supra note 1044, at 35. See also Erin C. Lentz and
Christopher B. Barret, “Food Aid and Dependency: Implications for Emergency Food Security Assessments”,
WFP, December 2005. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142287, visited 10
May 2012.
1077
Interview No. 3 with donor, Malawi, 2006. FSD2727.
1078
Interview No. 18 with WFP, Malawi, 2006. FSD2727.
1079
Poppendieck, Sweet Charity?, supra note 551, at 12.
163
3.2.4 Good development practice
Objective to target the most vulnerable through a participatory process
In addition to cultural acceptability and quality of the food commodities, principles of non-
discrimination and a focus on the most vulnerable, participation, accountability and
empowerment are very much on the agenda in food assistance. In this section I analyse the
meaning of these ‘good development principles’, starting with non-discrimination and
participation, that are highly interrelated.
Non-discrimination and impartiality do not imply that food assistance is to be distributed
equally to all individuals, but rather that it has to be distributed only on the basis of need,
regardless of any other consideration.1080 Therefore, this principle is most visible in the
selection of beneficiaries. Only the most food insecure households are being targeted in the
JEFAP programmes. “A household has to indeed be vulnerable, that they don’t have food,
don’t have livestock that they can sell and get food, that they don’t have relations that can
support them during this time.”1081 As we recall from previous sections, in the vulnerability
assessments carried out in the area of food security, discrimination experienced by people is
not a factor that is analysed. Vulnerability assessment is about identifying needs and making
sure there is no discrimination in the targeting process – but less about using discrimination
and marginalisation as a lens for analysis.
The identification of beneficiaries for FFA programmes and for targeted food distribution for
assets started with the report from the Malawi Vulnerability Assessment Committee (MVAC)
that indicated the deficit areas in terms of food.1082 After the tonnages needed in each area that
had been pointed out as food insecure had been established, the WFP and NGOs had a
meeting with the District Executive Committee to evaluate whether the MVAC report was
correct in its assessment of the food security situation in the particular district. As a second
step there was another meeting at the Traditional Authority level (with local traditional chiefs
as well as NGOs and CSOs active in that authority) where the WFP provided information
about the amount of food available for distribution and asked about the development priorities
set in the Traditional Authority so that the asset to be created by those participating in the
programme would be useful and linked to livelihoods. The aim was to identify the particular
villages that were more affected by hunger this year compared to normally.1083 As a third step
there was a meeting with the group village headmen and the village development committee
to collect data on how many households that group headman had and how many households
were vulnerable. (Note that there was no vulnerability assessment carried out, but instead the
group village headmen and the village development committee made these decisions.) The
village development committee then gave the NGO a list of names of vulnerable households
and the role of the NGO was to do random verification to check that these households were
indeed in need of food. It was the village development committee members that finally
performed the registration of the beneficiaries.1084 The role of the NGO was to sensitise the
1080
Cotula and Vidar, The Right to Adequate Food in Emergencies, supra note 1062, at 51.
1081
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1082
The MVAC is regularly forecasting vulnerability to hunger. It is made up by relevant ministries (chaired by
the Department of Poverty and Disaster Management Affairs), UN agencies and NGOs. Overall the trust in the
accuracy of the MVAC report seems to be high among all stakeholders but one NGO was questioning its
reliability.
1083
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1084
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006; Interview No. 18 with
WFP, Malawi 2006; Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
164
committee on the criteria for targeting the beneficiaries.1085 What should be noted was that the
village development committee was common for a group of villages. With regard to one
specific village, the structure was not explicit as to what happens.1086 Some villages had
organised sub-committees such as village relief committees or village food committees that
would manage the process, but this was not the case in all villages.
In a situation where the majority of the people in rural areas are poor, targeting is a great
challenge. Although humanitarian programmes usually cover 100 percent of the food
requirements as identified in the report by the MVAC, the situation on the ground may be that
households who are vulnerable were still left out. The difference between households being
targeted and those left out was often very small.1087 (“It is challenging for us to find ourselves
targeting vulnerable people but at the same time leaving out as well vulnerable people.”1088) It
was unclear from my interviews how transparent and accessible the selection criteria were for
the beneficiaries themselves. The risk is that the targeting process feels arbitrary in the eyes of
the community members, if the criteria for becoming selected for the programme are not
clearly defined beforehand. Another problem in terms of targeting was that the food security
situation of the urban poor was not assessed by the MVAC. This meant that there might have
been urban poor in need of assistance but the government could not provide this because of
lack of information that could have helped in the targeting process.1089 This was clearly a
matter of failing to live up to the right of non-discrimination.
With regard to women as a potentially ‘vulnerable group’, I was told that the WFP aimed at
high participation by women in food-for-asset activities. As put by one NGO: “Our
requirement is that at least we should have 70 percent women”.1090 I was not, however, given
any information on the kind of vulnerability analysis used to arrive at this decision.
As we know, ‘participation’ in development can mean different things depending on the
context and the actors involved. In development policy, participation is often framed narrowly
as a means to improve project performance, rather than a process of fostering critical
consciousness and decision-making.1091 ‘Participatory processes’ can mean fostering dialogue
between different stakeholders, or that these are involved in the different phases of the
programme. Sometimes the voluntary contribution by people in projects is seen as
‘participation’ (communities contributing time and effort to self-help projects with some
outside assistance).1092 This was not the case in JEFAP programmes in Malawi, or at least
nobody I interviewed suggested that since people were working before getting food this meant
it was a ‘participatory process’. Rather, statements such as “there’s good participation”1093
suggest that participation was seen as something that is necessary for a successful programme,
that is needed in order for the beneficiaries to ‘own’ the activities (and thereby sustain the
1085
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1086
Interview No. 32 with NGO that is not a member of JEFAP, Malawi 2006. During my interviews with NGOs
I was given differing information as to what happens in one village. This shows that the processes vary from one
village to another.
1087
Interview No. 4 with WFP, Malawi 2006; Interview No. 21 with Department of Poverty and Disaster
Management Affairs, Malawi 2006. FSD2727.
1088
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1089
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1090
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. WFP also indicated that
they prefer that the woman in a household collects the food. Interview No. 4 with WFP, Malawi 2006. FSD2727.
1091
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 5.
1092
Mikkelsen, Methods for Development, supra note 147, at 53-54. According to Englund there is a general
trend in Malawi to call for greater input in development projects by communities in the name of ‘participatory
methods’. See Englund, Prisoners of Freedom, supra note 414, at 100.
1093
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
165
assets that are being created with the help of food assistance). The ambition in FFA
programmes was that the selection of beneficiaries is a participatory process that is in the
hands of the community itself instead of an outside NGO, because this is the most effective
way to handle the process.1094 In this case people participated as ‘beneficiaries’ in
interventions designed to benefit them; participation was for the people.1095 This interpretation
of participation is far from that of ‘public participation’, which can be seen as a human rights
principle.1096
The value of protecting the right to participation, together with guaranteeing rights such as
freedom of the press and freedom of expression, is, according to Amartya Sen, a key issue
with regard to preventing famine. Sen argues that adversarial democracy and an investigative
press are political preconditions in famine prevention.1097 Although Malawi is suffering from
chronic hunger and poverty, a state which only occasionally develops into a large-scale
famine,1098 supporting new avenues for effective public participation in the young democratic
Malawi could promote rights-holders to demand action from duty-bearers before there is
another food crisis. This would mean fostering participation as a political process while also
addressing lack of accountability of people in power, instead of maintaining participation as a
technical process that aims at effectively managing a particular intervention.
A managerial approach to accountability
The WFP had a managerial and financial approach to accountability. The rationale was that
the WFP has delegated authority and was therefore answerable for carrying out tasks
according to agreed performance criteria.1099 Accountability was the ensuring of the
programme being run in the way it was supposed to according to the agreements. “We’ve set
out in the project document to do certain things, we make certain commitments and with
certain controls.”1100 This approach is understandable from the perspective of the WFP who
were indeed carrying out a task on behalf of the government. Surprisingly, it seemed that also
government representatives had the same approach to accountability (an apolitical process
concerned with inputs, outputs, and outcomes). “Using the Sphere Handbook1101 we are
expected to give an adequate amount of food to those affected, at least 2100 kilocalories. And
we are supposed to be accountable. Accountability is both to donors who are providing the
relief items as well as to the recipients, the people who have been affected.”1102
1094
Interview No. 4 with WFP, Malawi 2006. FSD2727.
1095
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
1096
Article 25 of the ICCPR (1966) makes clear that “Every citizen shall have the right (…) to take part in the
conduct of public affairs, directly or through freely chosen representatives.”
1097
Sen, Development as Freedom, supra note 203, at 178 and 181. See also Ben Crow, “Understanding Famine
and Hunger”, in T. Allen and A. Thomas (eds), Poverty and Development into the 21st Century (Oxford: Oxford
University Press, 2000) 51-74, at 72.
1098
In 2002 Malawi suffered from famine. See chapter 3.4.2 in this thesis. There is a difference between famine
and chronic hunger. “Famine is a crisis in which starvation from insufficient intake of food, combined with high
rates of disease, is associated with sharp increased death rates.” Chronic hunger is defined as “sustained
nutritional deprivation”. Crow, “Understanding Famine and Hunger” supra note 1097, at 52.
1099
Compare with Newell, “Taking Accountability into Account”, supra note 767, at 50.
1100
Interview Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1101
The informant is referring to the Minimum Standards of Humanitarian Response, which are providing
technical guidelines for disaster response in the area of inter alia food aid. For detailed information see Alain
Mourey, “Follow-up of the Code of Conduct of the International Red Cross and Red Crescent Movement”, in E.
Clay and O. Stokke (eds), Food Aid and Human Security (London: European Association of Development
Research, 2000) 309-325.
1102
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
166
Donors and UN institutions play a considerable role not only as the providers of funding (in
cash or in commodities) but also by advising on policy issues, and by expressing preferences
on how food should be distributed etc. The issue of holding these institutions accountable for
their actions and non-actions in the area of food assistance was never raised during my stay in
Malawi. When asking about it I was often told that the relationship between the government
and its donors was very unequal (“the donor has a superior stake and the recipient a lower
stake”),1103 and therefore donor accountability was not even on the agenda. As hunger
response is internationalised, responsibility is given to a wide array of people and institutions
(UN institutions, NGOs, donor governments and concerned citizens in any country on the
globe) with vaguely defined accountability relationships.1104
Accountability during the process of channelling food assistance in Malawi was challenged
by the fact that there were two governing structures side by side, one formal (created through
a decentralisation process), and one traditional. According to the formal structure District
Assemblies have the political power and District Commissioners have administrative
power.1105 Traditional Authorities consisting of traditional chiefs (inherited positions) have
important roles in development activities. As we have seen in the above, the traditional
structure was used in the food assistance targeting process. The problem was that it was not
clear whether the traditional structure was accountable to the formal structure.1106 These
uncertainties made it difficult to achieve the aims of the decentralisation process, i.e.,
enhancing accountability and transparency by public participation in local development
planning and by bringing decision-making closer to the public.1107
In a situation where needs are extremely high it is clear that those who have been given power
and responsibility sometimes misuse their status. Since being a member of the Village
Development Committee (VDC) was a voluntary commitment, it ensued that VDC members
put themselves or their relatives on the list of beneficiaries. Another common problem was
that there was a conflict between the chief and the committee, the chief wanting to decide who
should get food assistance,1108 and in that case the VDC was often a puppet of the chief. The
result might then have been that the irrigation created as part of the FFA programme was built
on the chief’s land.1109 There were also situations when the chief, and maybe also the rest of
the community, felt it should be the active community members who voluntarily took part in
development activities, such as building a school, who should get food assistance as a form of
payment. “The community says these people who are not active should not get food, food
should go to them actively involved.”1110 Therefore, addressing unequal power relations and
ensuring that it is possible for all community members to participate is a key issue if the
targeting process is to be accountable. There was, however, no equal participation in decision-
making. I was told that in the local setting it is the people with knowledge who make
1103
Interview No. 1 with Malawi Human Rights Commission, Malawi 2006. Similar statements in interview No.
24, with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1104
de Waal, Famine Crimes, supra note 1067, at 70.
1105
See Stephen N. Ndegwa and Brian Levy, “The Politics of Decentralization in Africa: A Comparative
Analysis,” The World Bank, August 2003. Available at http://www.kit.nl/portals/documents/query.ashx?
RecordID=668296&Portal=RDLG, visited 3 March 2012.
1106
Interview No. 32 with NGO that is not a member of JEFAP, Malawi 2006. FSD2727.
1107
On the decentralization process see Mustafa K. Hussein, “The Role of Malawian Local Government in
Community Development”, 20 Development Southern Africa (2003) 271-282.
1108
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1109
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1110
The interviewee is referring to safety net programmes such as the HIV/AIDS programme, not FFA
programmes that are targeting people who are physically fit to work. Interview No. 33 with NGO that is member
of JEFAP consortium, Malawi 2006. FSD2727.
167
decisions. “In most cases chiefs have knowledge because they are chiefs. They come from a
royal family, they have privileges, it means they have been to school, they have been exposed
more than an average villager.”1111 Open meetings where the names of the targeted people
were shared with the community members, the aim being that in the end everyone is satisfied
with the list, did occasionally take place in villages receiving food through the JEFAP.1112
However, it seems that there were few accountability procedures that would have given the
beneficiaries the opportunity to understand how service providers had discharged, or failed to
discharge the aid.
During my field work in Malawi, I was repeatedly told that food (especially maize) in general
and food assistance in particular is extremely political. Food is a useful political tool in a
country facing one food crisis after the other. (“Food distribution is highly political, it’s one of
the tools for politicians to get votes.”1113) The WFP and its partner NGOs naturally tried to
avoid the involvement of politicians in the targeting process, but sometimes this still
happened. “We also get a lot of pressure from politicians trying to manipulate our programme
to suite their political agenda. Usually when they [the Members of Parliament] are involved
the whole process is distorted. We have to try and make sure that this does not happen, but it
takes time and effort.”1114
In the Malawian context, where the distribution of food is highly politicised there is need for
strong accountability mechanisms. However, it never transpires that politicians are held
accountable for distorting food assistance programmes. What did happen was that the WFP
took action against the transporter from whose truck some bags of maize were lost.
Concerning attempts by politicians to highjack food assistance programmes, this was dealt
with informally (by calling the Department of Poverty and Disaster Management Affairs, and
asking them to talk to the politician).1115 Although creating a legal, administrative, and
political system to address these problems is first and foremost the responsibility of the
Malawian Government, both the WFP and its partner NGOs dealing with the day to day
implementation of food assistance programmes are in the position to voice these concerns as
well as being creative when it comes to enhancing accountability under the current structures.
Creating awareness of the right to demand accountable services from both Government
institutions as well as from NGOs can contribute to an environment where citizens speak out,
demanding accountability for how assistance is handled.
Taking accountability seriously implies that all the different actors who have responsibilities
in the chain of food assistance can be held to account. At the bottom of the chain is the
beneficiary, who might have concerns as to how the targeting was done. In cases of abuse or
mismanagement beneficiaries are likely to turn to the actors present locally, i.e. the VDC or
the chiefs (that most likely were involved in any possible abuse). “We tell the committees that
when they have their own gatherings they should brief the communities. And we tell the
beneficiaries that if you need further information consult the VDC.”1116 In other words, the
1111
Interview No. 24, with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1112
Interview No. 4 with WFP, Malawi 2006; Interview No. 21 with Department of Poverty and Disaster
Management Affairs, Malawi 2006. FSD2727.
1113
Interview No. 3 with donor, Malawi 2006. FSD2727.
1114
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1115
Interviews Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1116
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
168
communities are on their own with these problems, without official mechanisms of
accountability.1117
In the JEFAP programme accountability is an end in itself, a requirement that the government,
the WFP and the NGOs have to meet. It is not linked to any broader agenda about what kind
of political, social, and legal changes would be needed in order for beneficiaries to hold duty-
bearers accountable for the food assistance service.
Empowerment as building capacity
Can food assistance be empowering? A donor representative did not see many possibilities for
this: “Empowerment is hard to instil when you are giving somebody something. They don’t
have the ability to pay for it, and nobody wants to be in that situation. There’s very little ways
to empower them, they get a bag of maize and leave. There’s not much dignity in that. At
least you don’t make them beg for it.”1118
The WFP together with the NGOs implementing the programmes were however convinced
that people were indeed empowered through the way FFA programmes are designed. I was
told that the whole idea in FFA is empowering because you ask what the communities want
(“we ask people what do you want, what are the priorities in your area? They decide if
irrigation, forestry, roads.”)1119 Empowerment in this context is associated with being able to
decide for yourself, to manage your own affairs in the community. “The communities are
really being empowered because we just give them the guidelines and they are able to do the
targeting on their own. That’s part of empowerment.”1120
It was claimed that the FFA format built local stakeholders’ capacities and thereby
empowered them.1121 This meant that the beneficiaries receiving the food assistance were not
necessarily empowered but local actors (often the local elite) managing the process gained
more influence and power. The capacity of the actors being ‘empowered’ was supported
through various kinds of trainings, for instance WFP organised trainings for their NGO
partners on leadership of women, and the NGOs had then trained the VDCs on giving women
a voice in the communities.1122 The question of how effectively these kinds of trainings
addressed power relationships within the communities in general and the VDC in particular, is
impossible to assess.
I was told that ‘sensitisation’ is needed among the community members (“so that they
understand why we are there, why is this important”).1123 This implies that the ideas came
from outside (and clearly it was not always ‘understood’ in the communities why certain
things were needed or ‘good for development’, so they needed to be ‘sensitised’), but the
community members had the right to choose between different options and also had the right
to work (as volunteers, without payment) with various tasks in the development and relief
1117
The NGOs having responsibility for the implementation of food aid often has a large area to cover. As an
example it can be mentioned that one NGO with a limited number of staff is responsible for 38 000 households.
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1118
Interview No. 30 with donor, Malawi 2006. FSD2727.
1119
Interview No. 3 with donor, Malawi 2006. FSD2727.
1120
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1121
See International Food Policy Research Institute and World Food Programme, “Using Food Aid to Empower
Communities: Concepts and Examples from Madagascar and Honduras”, 2005. Available at
http://www.wfp.org/ policies/Introduction/other/Documents/ifpri_briefs/Brief6Empower.pdf, last visited 26
January 2007.
1122
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1123
Interview No. 3 with donor, Malawi 2006. FSD2727.
169
committees. This indicates that empowerment was seen as a process in which possibilities and
options were broadened – but the ‘beneficiaries’ did not necessarily have a strong voice in
setting priorities and agendas.1124
The way empowerment was understood in the FFA programme perhaps reveals more about
how the mainstream development discourse has defined the notion ‘empowerment’ than about
the food assistance programme itself. As so often happens when talking of empowerment, it
was believed that empowerment is something done or given to people; and when
empowerment is understood as being ‘given’ by one group to another (in this case the NGO
contracted by WFP to the local structures) this hides an attempt to keep control. Real
empowerment may take unanticipated directions, and the ‘power over’ the programme
process that the outside agent has is likely to be challenged.1125
3.2.5 Concluding remarks
Food assistance programmes are large operations that demand a lot of resources in terms of
administration and logistics, from the initial stage of procurement through international and
national transport up to the delivery to the distribution authority. The WFP is known for being
very capable of managing these affairs.1126 The principles of ‘good development practice’
were taken seriously1127 in the JEFAP but participation, empowerment, and accountability
remained tools to increase effectiveness in reaching the intended beneficiaries; instead of
viewing these principles as a something that should govern the relationship between the
government and its citizens. When trying to avoid the political games of food aid, the
development actors altered the programmes into a technical process, thereby also sidestepping
accountability and participation as democratic principles. The food assistance service was
being delivered by an international development agency in partnership with NGOs, on behalf
of the government, and through the support of donors. There is no evidence that food
assistance was dealt with as a rights-based service. Instead, the JEFAP food-for-asset
programme was a well-managed charity-based service.
The WFP has not reformulated its mandate in human rights terminology and the agency does
not refer to the right to food as a justification or legitimisation of its assistance programmes.
There is, however, a link between JEFAP and the right to food through the fact that it is a
human rights obligation of the Government of Malawi to provide food assistance in times of
emergency to those unable to access adequate food by the means at their disposal. As we have
seen, neither the government nor the WFP used this link as a starting point for the operations.
The Government did not view food assistance activities as a human rights issue. The right to
food, or human rights law in general, had few implications for the way JEFAP was
implemented. The notable exception was that the right of non-discrimination and focus on the
1124
Compare with Naila Kabeer’s definition of empowerment for women and with Amartya Sen’s capability
approach. Kabeer, “’Can I buy me love’?”, supra note 915, at 85; Sen, The Idea of Justice, supra note 928, at
231-232.
1125
Rowlands, Questioning Empowerment, supra note 897, at 16.
1126
Jens H. Schulthes, “Is There s Future for the WFP as a Development Agency? Or Does Food Aid Still Have
a Comparative Advantage?”, in E. Clay and O. Stokke (eds), Food Aid and Human Security (London: European
Association of Development Research, 2000) 256-273, at 256.
1127
The conclusion, in a report on the right to food in Malawi, is that “WFP appeared to be the most advanced in
using targeting for its programs”. See Carole Samdup, “The Human Right to Food in Malawi”, Report of an
International Fact-Finding Mission, Rights & Democracy and FIAN International, 2006, at 49. Available at
http://www.dd-rd.ca/site/_PDF/publications/globalization/food/food_malawi.pdf, visited 14 May 2012. Based on
interviews with villagers in Mchinji the fact-finding mission found that accessing food-for-works programs was
characterized by a number of obstacles such as variable criteria and reliability. Ibid., at 35.
170
most vulnerable people in theory had a strong role in the selection of beneficiaries, meaning
that only the neediest people should get food and that there should be no discrimination in the
targeting process. In practice the targeting process had its problems of course. This can partly
be seen as the donors’ way of trying to guarantee that food assistance was not misused for
political purposes, that targeting was indeed based on needs. (“You cannot give the
government the whole responsibility, because it’s too political. You have to work with NGOs
but making sure that the government is setting up a food security system.”1128) One could
even say that trying to make sure that food assistance reaches the most vulnerable was a sort
of ‘human rights conditionality’.
Avoiding the political games of food assistance meant that the influential development actors
were also avoiding ‘hunger as a political problem’. (‘Politics’ is in this context is not about
partisan politics but can be defined as “the manner in which humans divide and distribute
power and resources.”1129) When food is distributed every year this must mean there is
something wrong with the basic structure of the society1130 – and this is a political problem.
Distributing food was only dealing with the symptoms of how the basic structure of the
society was failing to meet the needs of the most vulnerable part of the population. The
question that we will look at in the next two chapters is whether a rights-based or a legal
approach to food insecurity has any transformative potential in advancing societal change in
favour of rights-holders.
3.3 A rights-based approach to food security: Demanding accountable services
as a matter of rights and obligations
It is clear that within a large development NGO such as Oxfam1131 there are several ways of
working with a rights-based approach (RBA), and the purpose of this study is not to identify
‘Oxfam’s approach to RBA.’ Instead the aim is to identify the role of human rights in this
particular intervention and to analyse the meaning of non-discrimination, accountability,
participation, and empowerment. What is characteristic of this particular RBA to food
security, implemented in three districts in Southern Malawi? What is the added value of an
RBA in the context of food security in terms of the potential transformative element of the
approach?
3.3.1 Oxfam’s rights-based approach
Poverty is a state of powerlessness in which people are unable to exercise their
basic human rights or control virtually any aspect of their lives. Poverty manifests
itself in the inadequacy of material goods and lack of access to basic services and
opportunities leading to a condition of insecurity.1132
Oxfam is one of many development organisations that link efforts to decrease poverty to
issues of human rights. Oxfam took the formal decision to adopt a RBA to development in
2000. Embracing RBA was a response to the limited success of previous approaches;
traditional ways of conducting ‘development’ were simply perceived as becoming less
1128
Interview No. 3 with donor, Malawi 2006. FSD2727.
1129
Kent, Freedom from Want, supra note 83, at 121.
1130
Compare with argument in Kent, Freedom from Want, supra note 83, at 123.
1131
Oxfam is a confederation of 17 organisations working with more than 3,000 partners in more than 90
countries. See http://www.oxfam.org/en/about/, visited 20 August 2012.
1132
Oxfam International, “Towards Global Equity: Strategic Plan 2001-2006”. Available at http://www.oxfam.
org/en/files/strat_plan.pdf, valid as of 8 March 2008.
171
effective.1133 This places a lot of pressure on the new approach to deliver effective outcomes,
but so far there are many question marks concerning the implications of applying RBA and its
‘added value’ is difficult to pinpoint. The exact meaning of RBA remained open to the
organisation and its partners in 2007.1134
In the Strategic Plan of 2001, Oxfam committed itself to working for five rights: the right to a
sustainable livelihood, the right to basic social services, the right to life and security, the right
to be heard, and the right to an identity.1135 Some of these rights are directly protected in
international human rights standards, while others, such as the right to livelihoods, are not part
of the human rights regime (although it could be argued that all of the five rights reflect many
human rights treaties and declarations). The motivation behind Oxfam’s choice is pragmatic:
this formulation made sense to Oxfam’s staff and their counterparts around the world.1136
When we examine the five rights it is easy to see why these rights make sense to development
professionals. The right to a sustainable livelihood stands for food security, the right to basic
social services for basic health care, clean water, and education, the right to life and security
for humanitarian action, the right to be heard for participation, and the right to an identity for
vulnerable groups and gender. These issues have been part of the development agenda for a
long time. What is new is the rights language.
In addition to promoting the five rights, Oxfam is committed to the principles of participation,
accountability, the universality and interdependence of rights, non-discrimination and
equality.1137 Although empowerment is not on this particular list it is another important
principle that underpins Oxfam’s work. Oxfam claims that the purpose of the rights-based
approach is to transform the vicious cycle of poverty, and disempowerment “into a virtuous
cycle in which all people, as rights-holders, can demand accountability from duty-bearers, and
where duty-bearers have both willingness and capacity to fulfil, protect and promote people’s
human rights.”1138 As we will see in the following analysis of the programme called Shire
Highlands Sustainable Livelihoods Programme (SHSLP), the core of Oxfam’s approach to
RBA is about empowering rights-holders to demand accountable services as a matter of rights
from duty-bearers, while at the same time supporting the capacity of these duty-bearers so that
they can meet their human rights obligations.
3.3.2 Background to the Shire Highland Sustainable Livelihoods Programme
In order to understand what the introduction of RBA, that started around 1999, has meant for
SHSLP in terms of working methods, it is necessary to first give a brief overview of how the
programme has evolved. Oxfam has been working in the districts Mulanje, Thyolo and
Phalombe in the Southern Region of Malawi since 1996.1139 However, in 1987/88, Oxfam’s
interaction with Mulanje District had already begun through a commissioning of action
research on poverty. This research showed the pervasive, acute, and endemic nature of
poverty in rural Malawi – and the inadequacy of government structures to address the
1133
Marjolein Brouwer, Heather Grady et al, “The Experiences of Oxfam International and its Affiliates in
Rights-Based Programming and Campaigning”, in P. Gready and J. Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 63-78, at 63.
1134
Oxfam Novib, “How RBA Works in Practice: Exploring how Oxfam Novib and Its Counterparts Apply an
RBA”, 2007 (unpublished document).
1135
Oxfam International, “Towards Global Equity”, supra note 1132.
1136
Brouwer and Grady et al, “The Experiences of Oxfam International”, supra note 1133, at 65.
1137
Oxfam Novib, “How RBA Works in Practice”, supra note 1134.
1138
Brouwer and Grady et al, “The Experiences of Oxfam International”, supra note 1133, at 64.
1139
Oxfam, “Integrating Rights into Livelihoods Programme: A Case Study of Shire Highlands Sustainable
Livelihoods Programme, Malawi” (unpublished project document that is with the author).
172
problems – at a time when the one party regime of President Banda did not officially
recognise the existence of poverty. Due to the authoritarian regime it was not possible for an
international NGO such as Oxfam to work directly with communities. Instead, the action
researchers recommended Oxfam to train district government staff in participatory problem-
solving approaches, with the objective to generate attitudes and knowledge that would foster
the participation of beneficiaries in development. This work was started in 1990, four years
before the introduction of a democratic constitution.1140 It was a major challenge to build
government capacity at that time due to the intense and paranoid political environment.1141
The political environment was often mentioned by Oxfam staff during my interviews as a
critical factor when introducing RBA. I was told that during the run-up to the second
parliamentary and presidential elections (1999) in the country, Oxfam felt the need to increase
awareness among citizens that whether they supported a one political party or not they still
had the right to demand services from government as a right, not as a favour. Oxfam decided
to ‘sensitise’ people on their rights, and at the same time also ‘sensitise’ the government
structures, i.e. the service providers that Oxfam had been working with throughout the
previous years. It was felt necessary to work on two sides: the supply side to ‘stimulate the
supply of rights and services’ and on the demand side to ‘generate awareness of and demand
for these rights and services’.1142 Firstly, the dual approach admitted that it was not
constructive to only create demand when the government institutions may not have resources
to meet those demands,1143 and secondly, the non-conducive attitude among government
officials needed to be addressed. “Now, we are coming from a background where service
providers were seeing themselves as bosses. With the republican constitution it’s more or less
a demotion to servers. So we want them [the service providers] to accept that they have duties
which they have to fulfil and for them to appreciate what there is to understand when we talk
of human rights.”1144
A third reason for the dual approach may have been that this is how Oxfam has been working
from the beginning of the current programme in 1997 when a community based focus was
introduced. Having identified the initial 10 target villages in Traditional Authority Mbuka a
first participatory rural appraisal (PRA) with the whole community present was carried out.
Ever since, PRAs have become yearly events during which communities are assisted in
analysing their problems and discovering their root causes. The fact that since the year 2000
government extension workers have carried out the PRAs without Oxfam supervision shows
that the programme has become ‘their’ programme instead of it being ‘owned’ by Oxfam.1145
The link between Oxfam and the government institutions (the Ministry of Agriculture and
Food Security and the Ministry of Community Development being the most important) was a
so called desk officer. The link between Oxfam and a community was a VDC, which was
elected under the supervision of an extension worker.1146
1140
For a short overview of the political history of Malawi, see Englund, Prisoners of Freedom, supra note 414,
at 13-18 and Englund, “Introduction”, supra note 985, 11-24.
1141
Max Lawson, “Oxfam Mulanje Livelihood Security Programme: Institutionalising Participation for
Sustainable Livelihoods, Programme Model and Lessons Learnt 1987-2000”, at 4 and 6-8 (unpublished project
report).
1142
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193.
1143
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1144
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1145
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 9 and 17.
1146
It should be noted that while the village development committees under the decentralisation structure are at
group village level (on average about 10 villages), in the villages where Oxfam work, there is an elected village
development committee in every village. See Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra
note 1141, at 18.
173
3.3.3 Programme activities in 2005/2006
Throughout the existence of the programme, community members have in PRA exercises
identified food insecurity as their primary problem. In Mulanje people live in rural areas
farming tiny pieces of land,1147 the fertility of which has been impoverished by continuous
maize cropping. The majority of smallholder families have been found to be chronically food
insecure, their own production lasting only for two-to-three months of the year.1148 SHSLP
promotes food security in a number of ways: by provision of improved seeds, provision of
goats, organic manure making campaigns, training of extension workers and farmers on the
management of kitchen gardens, etc.1149
Oxfam has found that in the programme area income security was an important component of
food security. In order to obtain an income, people did casual agricultural labour (‘ganyu’),
which means working for food or cash in the fields of slightly better-off farmers or working
for cash wages on commercial tea estates.1150 Therefore, the programme aimed at improving
labour relations. During the high season about 80 000 people were employed in the tea estates
in Mulanje and Thyolo. The programme supported the Ministry of Labour Departments in
both districts so that it could conduct inspections of workplaces, in order to enforce labour
legislation.1151 Moreover, the newly established Tea, Coffee and Macadamia Workers’ Union
was also supported by Oxfam.
The Tea, Coffee and Macadamia Workers’ Union was formed in 2003. At that time unions
were not recognised by tea estates. Therefore, Oxfam facilitated tripartite negotiations
between the Labour Office (government), the Tea Association (employer) and Tea, Coffee
and Macadamia Workers’ Union (workers) and in August 2003 a recognition agreement was
signed. Two months later an access agreement, which gave the union the right to enter into
the estates and recruit members, was signed.1152 In 2006, negotiations concerning a collective
bargaining agreement were underway. This agreement was to mean that the union can bargain
for better conditions of employment for their members.1153 The level of payment in the tea
industry was so low (1100 Malawi Kwacha per month) that tea estate workers fall below the
national poverty line.1154
Support offered to the Labour Office meant that its staff members could go on regular
inspection visits to tea estates and other workplaces. During these inspection visits staff
checked whether labour conditions at the site were in line with labour regulations. Increased
1147
In the Mulanje District the average land holding size of households is 0.3-0.4 hectares, which is not
sufficient to meet subsistence needs. Elke Kasmann and Wiseman Chirwa, “Mission Report &
Recommendations, Integrated Food Security Programme, Mulanje”, Malawi, GTZ, May 1997, at 10
(unpublished document that is with the author).
1148
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 6; Interview Nos. 5, 6 and 7
with Oxfam, Malawi 2006. FSD2727.
1149
Oxfam, “Shire Highlands Sustainable Livelihoods Programme (SHSLP) Annual Report”, period of May
2005 to April 2006, at 1 (project document).
1150
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 6; Interview Nos. 5, 6 and 7
with Oxfam, Malawi 2006. FSD2727.
1151
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193; Oxfam, “SHSLP Annual
Report”, supra note 1149, at 7.
1152
In 2005, the union had 15,000 paying members but in 2006 membership dropped to 7,000 due to a drought
that affected the tea industry. The membership fee was 10 Malawi Kwacha per month.
1153
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. Interview No. 14
with Tea, Coffee and Macadamia Workers Union, Malawi 2006. FSD2727.
1154
1100 Malawi Kwacha is about 6.5 Euros. The national poverty line is 16,165 MK per year (1347 MK per
month). Republic of Malawi, “Integrated Household Survey 2004-2005”, National Statistical Office, October
2005, at 138. Interview No. 14 with Tea, Coffee and Macadamia Workers Union, Malawi 2006. FSD2727.
174
inspections together with training concerning labour rights led to an increase in the complaints
received by the Labour Office. In the year 2000, the Labour Office dealt with 201 complaints
while in 2004 the number was 1,000. These complaints concerned issues such as non-payment
of wages, unfair dismissals and injuries at the workplace.1155 The Labour Office was in this
regard equipped to support the members of the workers’ union in their struggle for fair
conditions of employment.
Droughts, disease outbreaks, crop disease and HIV/AIDS were factors that had a negative
impact on the lives of the 120,000 farm families that the programme was targeting.1156
Therefore, although SHSLP started as a development programme, Oxfam has also been
involved in humanitarian responses in Mulanje, Thyolo and Phalombe. In 2006, there was a
humanitarian programme reaching over 70,000 households with food assistance and another
6,000 households benefited from cash transfers (as an alternative to food assistance).1157
The programme, moreover, focused on various policy issues that had a bearing on food
security. One such issue was the on-going land policy reform. One aim of the SHSLP was to
increase awareness regarding the proposed land law (so that traditional leaders would know
their new role), the new land tenure system, and the new structures that were to be
established.1158 The human rights aspect of land rights1159 and the impact that the proposed
new Land Act could have on food security was not raised. Another issue that had bearing on
livelihoods, especially livestock production, was lack of security. During participatory rural
appraisals community members raised warnings that cases of theft of livestock had a negative
impact on food security. As a response, crime prevention committees were formed and trained
with reference to community policing as well as crime victim rights.1160
The programme also worked with government institutions at the district level to address
gender-based violence as an issue that prevented women from taking part in development-
related activities in the community. A Victim Support Unit where victims of gender-based
violence could seek assistance was established. Furthermore, there were meetings in
communities to discuss the issue and informing people where they could report cases of
domestic violence. According to Oxfam airing out these issues contributed to changes in
attitude: “People, instead of saying these are family issues, ask can I seek redress from these
institutions?”1161
3.3.4 Focus on rights and obligations
At the time of my field research, SHSLP had engaged the NGO Women and Law in Southern
Africa (WLSA) to conduct training programmes with government extension workers, to
stimulate an understanding of the rights and duties in their work, and another NGO called
1155
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. FSD2727.
1156
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1157
Oxfam, “SHSLP Annual Report”, supra note 1149, at 1. Interview No. 6 with Oxfam, Malawi 2006.
FSD2727.
1158
Today customary land is administered by village headmen and chiefs according to local custom. See Asiyati
Lorraine Chiweza, “The Challenges of Promoting Legal Empowerment in Developing Countries: Women’s
Land Ownership and Inheritance Rights in Malawi,” in Dan Banik (ed.) Rights and Legal Empowerment in
Eradicating Poverty (Surrey: Ashgate, 2008) 201-216.
1159
See e.g. De Schutter, “The Emerging Human Right to Land”, supra note 553, at 304.
1160
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7.
1161
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
175
Malawi CARER1162 to conduct sensitization meetings on human rights in the communities. In
order to increase awareness on rights among communities, Malawi CARER had established
village rights committees in all the villages that were part of the SHSLP. Together with
volunteer community based educators, who had received training on rights issues from
Malawi CARER, the village rights committees organised sessions where rights were
discussed and they also assisted individual community members who wanted to seek redress
for human rights violations.1163
Another component of RBA was the so called radio listening clubs. The Malawi Broadcasting
Corporation’s (MBC) Development Broadcasting Unit (DBU) had received support from
Oxfam to establish radio listening clubs in 16 communities. The DBU provided communities
with a microphone, a recording device, a radio, and training how to use the equipment. Then
the local radio listening club made a recording on concerns that the village had, (a ‘village
voice’) e.g. on problems with service delivery or non-existing services, labour issues, land
issues or justice delivery, and took that recording to the responsible office at district level.1164
It was claimed that the realisation of rights was triggered by increasing interaction between
“claim holders (communities) and duty-bearers (people in authority – service deliverers).”1165
The service provider was supposed to listen to the tape and go to the village to respond, and
together set up a plan for how they were going to address the situation. If no action was taken
within the agreed time frame the villagers recorded another programme and that would go on
air on national radio.1166 This weekly radio program, partly consisting of material produced by
radio listening clubs, was in Chichewa.
Radio listening clubs were not unique to the SHSLP. Community or rural radio had been a
feature in participatory rural development initiatives in Malawi also before the SHSLP and
outside of the programme area. In fact MBC radio has long traditions in being used for
agricultural and rural development.1167 Radio is the foremost mass medium in Malawi because
it is far more widely accessed than newspapers and television, and also the internet.1168
Mchakulu, who has done research on radio listening clubs, based on field research from 2002-
2003 claims that club members rarely discussed national issues that affected development at
local level, the main reason being that most people were unwilling to discuss controversial or
politically sensitive issues. This might be changing. Mchakulu’s research shows that the
younger generation wanted a more vigorous and open-minded agenda while the older
generation still wanted a more cautious approach that would not alienate the local political
elite.1169 I was told that the radio listening club I visited did a programme on corruption in the
1162
CARER stands for Centre for Advice, Research, and Education on Rights. Director of Malawi CARER is Dr.
Vera Chirwa, a lawyer and prominent person in Malawi’s history. See Gilman, The Dance of Politics, supra note
982, at 163.
1163
Interview No. 11 with community based educators in Mulanje District, Malawi 2006. FSD2727.
1164
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7-8. Mchakulu lists HIV/AIDS, general community
health, education and agriculture and farming as topics that were dominating most clubs in 2002-2003. See
Japhet Ezra July Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, 33 Journal of Southern
African Studies (2007) 251-265.
1165
Development Broadcasting Unit, “Case Study: Makaula Community Reunion with Service Provider”, at 3.
1166
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1167
Linje Manyozo, “Rural radio and the promotion of people-centered development in Africa: Radio Listening
Clubs and community development in Malawi”, Paper presented in Maputo 6-10 December 2005, at 3. Available
at http://www.codesria.org/IMG/pdf/manyozo.pdf, visited 10 May 2012.
1168
Englund, Human Rights and African Airwaves, supra note 968, at 11.
1169
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 257-258; 265.
176
distribution of government fertilizer coupons,1170 which would suggest that at least this club
did not avoid politically sensitive issues.
Mchakulu’s research also shows that among youths the desire to “exercise their
constitutionally guaranteed right to freely express themselves” was the second most common
reason for joining a radio listening club, information seeking being the primary reason.1171
This indicates a certain awareness of and willingness to use a language of rights.
Mchakulu claims that radio listening clubs present local citizenry with a public sphere for
debate that is free of state interference.1172 It is the club members themselves who have the
power and responsibility to set the agenda for these debates. Any club member is free to raise
a burning issue for discussion.1173 According to Englund, this principle that made it possible
for everyone, regardless of age, gender, and other similar markers of hierarchy, to submit
stories was unprecedented,1174 and it opened new space for public debate in rural Malawi. The
forum was, however, not free from power struggles. Women spoke less than men, and the
longest time slot was taken by service providers, who gave expert-like advice in a manner that
is typical of top-down developmentalism and a common problem to many participatory
approaches.1175
Women made up the majority of the clubs, and this can be partly explained by the fact that the
Development Broadcasting Station’s original aim with the clubs was to meet developmental
information needs of women. In fact, the reluctance of some of the clubs to discuss political
issues emerges partly from the traditional low status of women in Malawi. The women who
founded the clubs emphasised issues that seemed development-oriented and useful for the
improvement of their households and local communities as a way to legitimise the clubs in the
face of a sceptical male-dominated society. Later on men were invited into the club, and this
was seen as a way to get the men’s ‘stamp of approval’.1176
3.3.5 Sustainability and the role of the government
All extension workers had received training on rights-based approaches by the WLSA. This
reflected the fact that the SHSLP was not Oxfam’s programme but a programme implemented
by government structures with the support of Oxfam. It was government service providers
who were doing the job on the ground with communities. Oxfam filled in with resources, for
instance, by providing motorbikes and fuel to extension workers so that they could reach the
communities. In a highly aid-dependent country, such as Malawi,1177 this approach is difficult
to avoid. At the same time it is clear that Oxfam cannot continue with this form of direct
budget support at district level forever. The question is whether central government is going
to make it possible for government officials at the district level to continue with the work after
Oxfam discontinues its financial and other support. (The democratically elected local
government councils are responsible for local development plans to the central government
1170
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1171
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 260.
1172
Ibid., at 253.
1173
Ibid., at 255.
1174
Englund, Human Rights and African Airwaves, supra note 968, at 223.
1175
Ibid., at 42.
1176
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 258-260.
1177
Between 1994-2004 aid disbursements have represented between 13 and 41 % of GNI. See “Evaluation of
General Budget Support 1994-2004: Malawi Country Report”, May 2006, at 10-11. Available at
http://www.idd.bham.ac.uk/general-budget-support/PDFS-OECDDAC/mal.pdf, valid as of 8 March 2009.
177
but have no financial autonomy, and no right to collect taxes. They thereby depend on
financing from central government.)1178
The service providers I met did not think central government is going to provide finances to
continue the work that they had been doing with funds from Oxfam. On the one hand they felt
confident that they had the skills and capacity to carry on with the new working methods also
in the case where Oxfam had to leave Mulanje, but, on the other hand, they were concerned
that the lack of resources will prevent them from using the newly required skills. “If they
[Oxfam] are to pull out it’s just as good to give a gun without the bullets. So how can we use
the gun? How can we reach the community so that we can assist their problems?”1179 Service
providers were worried that if they do not have the resources to meet and assist the
communities, this will create a lot of frustrations. “It’s really a challenge… they [the
communities] have been trained in rights, this time around they are able to demand various
services! And at certain times Oxfam was able to come and rescue where government cannot
manage. Now that Oxfam is pulling out it remains with government to respond to what
communities will be demanding. That will be difficult and at the end of the day we are seeing
some frustrations on the part of the communities.”1180
This question of sustainability is always a challenge in development cooperation. If the trigger
to use a rights-based approach to government service provision at district level comes from an
international NGO instead of the central government, there is no guarantee that the changed
practices that may take place actually last longer than the programme. Another challenge is to
integrate what local duty-bearers learn in rights trainings into their everyday activities.1181
Unless it is clearly spelled out that services in e.g. the area of agriculture are to be seen as
obligations on the part of the local authorities and this approach is integrated into the official
documents of these institutions, practices are not likely to change.1182
Oxfam had taken conscious steps to move away from being a service provider to being a
facilitator. Instead of providing funding directly to small-scale interventions in communities it
had started giving funding to the District Development Fund that is administrated by the
District Assembly. Communities, through VDCs, were encouraged to apply for funds from
this Fund. The idea was that people would understand that Oxfam is not going to be present in
the district forever,1183 and would learn to turn to the government structures as duty-bearers.
The process of how a duty-bearer was identified in the SHSLP is interesting from a human
rights law perspective since traditionally only the state (government) and its agents are
recognised as having duties under human rights instruments.1184 When human rights enter into
development efforts it is, however, increasingly acknowledged that rights are also relevant in
horizontal relationships between persons.1185 In the SHSLP, governmental, non-governmental
1178
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 48.
1179
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1180
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1181
Interview No. 17 with Women and Law in Southern Africa, Malawi 2006. FSD2727.
1182
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1183
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1184
Krzysztof Drzewicki, “Internationalization of Human Rights and Their Juridization”, in R. Hanski & M.
Suksi (eds), An Introduction to the International Protection of Human Rights: A Textbook (Finland: Institute for
Human Rights, second revised edition, 1999) 25-47.
1185
Ghalib Galant and Michelle Parlevliet, “Using Rights to Address Conflict – Valuable Synergy”, in P. Gready
and J. Ensor (eds.), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice
(London: Zed Books, 2005) 108-128, at 115.
178
and private actors were all seen as relevant duty-bearers.1186 What mattered was who the duty-
bearer is in the eyes of the community members, not under some legal provision. The
community simply wanted to know who can help them to solve their problems.1187 More often
the help came from NGOs, instead of government structures. This implied that in
communities Oxfam was seen as a service provider, and sometimes even as the ultimate
authority. This constellation was the result of Oxfam (and other NGOs) having more funds
and resources than government structures.1188 NGOs that wanted to promote and facilitate the
government duty-bearers instead of themselves providing services directly to the
communities, find that it was not easy to change roles,1189 especially since community
members often thought Oxfam was doing a better job than the government.1190
3.3.6 Giving meaning to human rights: An actor-oriented approach
In the SHSLP there was open use of ‘rights language’, especially by the radio listening clubs.
In the programme documents there was, however, no analysis of the legal framework nor was
there reference to specific rights in the Constitution of Malawi or international human rights
instruments ratified by the country. Oxfam’s own (international) list of five rights was not
used either. There was simply no explicit link between the programme activities, focussing
mainly on food security, and the legal framework.1191
Oxfam staff told me that the Bill of Rights in the Constitution of Malawi1192 was the point of
reference for the human rights awareness rising sessions. The challenge was that economic
and social rights had a weak position in the Constitution in Malawi. For instance, the booklet
“Human Rights in the Constitution of Malawi: The Bill of Rights”1193 reflected the
Constitution in the sense that the political and civil rights were given the majority of the
attention while only the last page dealt with the right to development, which entails access to
basic services such as education, health and food.1194 Oxfam wanted to change attitudes
towards socioeconomic rights: “Food security is a human rights issue. And people don’t look
at it as a human rights issue. Government has to look at food security as a human rights issue
and make sure people are food secure.”1195 The strategy taken in the SHSLP was to work
directly with the policy and practice by district level government institutions instead of
influencing the legal framework.
I was perplexed by this lack of analysis of and reference to the legal human rights framework
until I came across theoretical material on an actor-oriented perspective on human rights in
1186
Oxfam Novib, “How RBA Works in Practice: Exploring how Oxfam Novib and Its Counterparts Apply an
RBA”, 2007 (unpublished document) at 12.
1187
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1188
Interview No. 24 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1189
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1190
I discussed the role of Oxfam and other NGOs with a group of women at Mulanje Mission and they said
people in general think it is better that aid is coming directly from NGOs than going through the traditional
structure of chiefs. It is believed that government structures at all levels are corrupt. Group Interview No. 4 with
female members of Church and Society in Mulanje District, Malawi 2006.
1191
This is often seen as the first step when applying a rights-based (or a human rights-based) approach to
development. See OHCHR, “Frequently Asked Questions”, supra note 81, at 15.
1192
Constitution of the Republic of Malawi, 1995, Chapter IV.
1193
Malawi CARER, 2001. Malawi Carer has produced awareness raising materials on human rights in the form
of booklets and posters (in English and Chichewa).
1194
Article 30(2) of the Constitution reads: “The State shall take all necessary measures for the realisation of the
right to development. Such measures shall include, amongst other things, equality of opportunity for all in their
access to basic resources, education, health services, food, shelter, employment and infrastructure.”
1195
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
179
development, and I was able to put the SHSLP into that conceptual framework. In the SHSLP
actors did not primarily rely on fixed definitions of the human rights concept in general, or the
right to food concept in particular, instead the meaning of ‘human rights’ were shaped in the
process of demanding services from local duty-bearers.
One could assume that lack of analysis of the legal framework would have an effect on
situation analysis but some actors within the SHSLP had taken steps into the direction of
using rights as a roadmap for development (‘rights’ defined very loosely). Before radio
listening clubs decided to record a ‘village voice’ they identified a problem in terms of rights,
and they also identified a duty-bearer (although the term ‘service provider’ was mostly used).
For example the community agreed that one reason for food insecurity was lacking extension
services needed to produce more food.1196 A DBU officer explains:
The way our right to food is being denied is that we are not getting the services,
the extension services from Government extension officer. So he’s not coming to
the community to teach us on how we can make our ridges. As a result we are not
producing food and we are hungry. So here we wanted to demand that now. So
they [the RLC] invite that community and they make that recording. And in that
recording they are going to explain how his absence or his inability to come to
deliver services is violating their right to have food so they explain in that process
that you see our right to food is being denied here because of your absence, you
are not coming here to give us your services.1197
This human rights language is far from that in international human rights covenants and closer
to the everyday lived reality of power struggles over resources. Members of the radio listening
clubs were less specific (than the DBU officer quoted above) on how they had given meaning
to the right to food to include extension services,1198 but the general impression was that
people were starting to demand services from duty-bearers as a matter of rights, not as charity
as it used to be. There seemed to be general awareness that I have a right, without people
being specific1199 and in most cases without relating rights to obligations of duty-bearers. In
some instances there was, however, also awareness that the fact that I have a right means
somebody else has a duty. (“We know we have the right to food so government should reduce
the maize price.”1200) When asking what should be the role of the central government I was
told: “The major role that the government should play is to ensure that we villagers here have
all the social services present in our communities. In addition, the government has a
responsibility to make sure that all our rights, including right to food, right to health, right to
education are fulfilled. It’s their responsibility.”1201 These quotations show that in the lived
reality of villagers it made sense to equate rights with services.
The way actors in the SHSLP gave meaning to rights and obligations is an example of how
“rights are shaped through actual struggles informed by people’s own understandings of to
1196
Group Interview No. 2 in Ngamwani Village in Thyolo District, Malawi 2006. FSD2727.
1197
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1198
Group interview No. 2, Ngamwani Village in Thyolo District, Malawi 2006 (with members of RLC): “One
program that I’d like to highlight since the RLC was established is how to make ridges and to protect soil. We
identified that problem because it was also abusing or violating our right to have food or food security. So we
decided to record a program to look at the issue of ridges that was also contributing to shortages of food in this
area.” FSD2727.
1199
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1200
Group Interview No. 1, Malawi 2006. FSD2727.
1201
Group Interview No. 2, Malawi 2006. FSD2727.
180
what they are justly entitled.”1202 Actors do not necessarily use any ‘legal’ argumentation but
instead insist on what they think “they are justly entitled to” – ‘just entitlement’ as opposed to
‘an ethic of human rights’ – and this is characteristic of an actor-oriented approach to human
rights in development, as spelled out by Nyamu-Musembi.1203 One can also draw parallels to
the constructed rights tradition, according to which human rights are constantly being
negotiated, defined and redefined at all levels of society.1204 Human rights are seen as
contextual and dynamic, grounded in lived experience. This tradition underlines people’s
agency in human rights protection and realisation.1205
According to Englund the Chichewa radio programme, partly produced through radio
listening clubs, has generated a nationwide audience that “debates the abuse of power through
idioms that are different from the vocabulary introduced by human rights activists”.1206 The
kind of individualistic and assertive claim-making that has been promoted by human rights
activists, who also tend to focus on civil and political rights rather the full range of rights
claims, has been absent.1207 The radio programme questioned the idea that human rights need
to be introduced by experts. All of this contributed to an alternative debate on injustice,1208
providing competing meanings to ‘human rights’ and questioning the official and NGO
human rights discourses. This supports the suggestion by Gready and Ensor that a rights-
based approach has potential to not only reinvent development but also reinvent human
rights.1209
This kind of actor-oriented approach in which human rights are loosely defined without
reference to international norms and standards is contrary to the ‘express linkage’ requirement
of HRBAs, being the basis of inter alia the Common Understanding among UN Agencies.
According to this thinking human rights standards and principles should guide all phases of
programming, and human rights should determine the relationship between rights-holders and
duty-bearers, i.e., there should be express linkage to the normative human rights system.1210
From a community development perspective it is, however, not acceptable that human rights
are defined in a non-participatory manner by the powerful for the powerless. Participation has
long been part of a community development discourse; we recall that participation has been
on the agenda of Oxfam since 1990. A community development perspective on human rights
strives to examine ways to make the process of giving meaning to human rights more
democratic and participatory.1211
Working with a loose definition of human rights enabled Oxfam and its partners to create
more dialogue about the meaning and content of the human rights concept than that which is
normally the case in awareness raising projects. The voice of the actors was particularly
strong in radio listening clubs as they are free to set their own agenda in terms of claiming
needs as rights.
1202
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41. See also
Ife, Human Rights from Below, supra note 8.
1203
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41-51.
1204
Ife, Human Rights from Below, supra note 8, at 76.
1205
Ibid., at 76-77.
1206
Englund, Human Rights and African Airwaves, supra note 968, at 3.
1207
Ibid., at 5 and 9.
1208
Ibid., at 221.
1209
Gready and Ensor, “Introduction”, supra note 70, at 14.
1210
Common Understanding, supra note 50.
1211
See Ife, Human Rights from Below, supra note 8, at 126-127.
181
However, when actors come together to give meaning and content to what they mean by
human rights, when they decide what they are going to struggle for, there is an obvious risk
for exclusion and discrimination. In a RBA, such as that used by Oxfam, the task of the
facilitators is to make sure the voice of everyone is heard and reflected. Otherwise there is a
risk that the agenda is set by the powerful for the powerless, only on the community level.
The data I have from the SHSLP is not rich enough to analyse the process of how actors come
together to give meaning to human rights and whose voice has been the strongest in radio
listening clubs, and other forums. Certainly, the radio listening club process has not been free
from challenges and power struggles, as has been shown by Mchakulu’s research.
Interference from local political elites, which in some cases can lead to violence, and
sometimes fears of state intervention, were factors that weakened these forums.1212
In order to avoid exclusion and discrimination in the clubs, it would have been important to
put more effort into the process of identifying and defining an issue as a human rights issue to
be taken up by the club. Jim Ife reminds us that a human rights from below approach to
community development is not an ‘anything-goes-approach’. There should also be an
aspiration of universality:1213 what constitute ‘our’ human rights in this community should
also constitute ‘your’ human rights in another community. It is, moreover, important that
some core values and ideas embedded in the legal documents that constitute human rights
law, such as autonomy, choice, bodily integrity, equality,1214 and voice, are maintained and
respected in an actor-oriented approach to human rights, which has no fixed definitions of the
human rights concept.
3.3.7 Are rights confrontational?
In most of the interviews I was reminded of the historical context of Malawi; that the whole
issue of human rights arose around 1994 with the transition from a one party regime to
drafting a new constitution that provides for democratic governance and the introducing of a
bill of rights. Introducing ‘rights talk’ in villages, promoting people to demand services as a
right and thereby challenging power, and doing this in a very resource constrained
environment, is indeed not an easy task.
Human rights are sometimes accused of being ‘political’, or overly focussed on the state and
using adversarial techniques to hold violators accountable. It is claimed that this is unhelpful
for the development process.1215 (The debate about the de-politicisation/re-politicisation that
human rights potentially bring as they enter into development is dealt with elsewhere. If
human rights are to be bring about transformation, they have to be ‘political’ in that they have
to deal with political questions about how to share resources.) The DBU’s approach – making
radio programmes where duty-bearers’ lack of action are exposed on national radio – can
indeed be defined as almost confrontational, but it is unclear if this approach has found its
inspiration in human rights techniques or in empowerment techniques stemming from the
development discourse. Moreover, Mchakulu’s research shows that at least some clubs used
1212
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 265.
1213
Ife, Human Rights from Below, supra note 8, at 213.
1214
Sally Engle Merry refers to inter alia these values in Human Rights and Gender Violence, supra note 287, at
221.
1215
Mary Robinson, “What Rights Can Add to Good Development Practice”, in P. Alston and M. Robinson
(eds), Human Rights and Development: Towards Mutual Reinforcement (Oxford: Oxford University Press,
2005) 25-41, at 32.
182
to avoid politically sensitive issues and debates, focusing on economic empowerment rather
than political empowerment.1216
The difference between ‘human rights techniques’ and ‘empowerment techniques’ originating
from development discourse could potentially be quite substantial as adversarial human rights
techniques aim at duty-bearer action to remedy the situation while the development discourse
often promotes increased self-help and self-reliance in the name of empowerment.1217 In the
case of the radio listening clubs the two approaches seem to come together. The responsible
duty-bearer is invited to the community for a dialogue and it is underlined that both sides (the
community as well as the service provider) should contribute to solving the problem. “After
discussion we make an action oriented plan: what are we going to do as a community and how
are you as a service provider going to assist us?”1218 Mchakulu notes that members of radio
listening clubs are not asking the authorities and service providers to solve problems on their
own but instead the club members propose possible solutions.1219
Not all international NGOs applying what they call RBAs have gone as far as Oxfam and the
DBU in Mulanje, Thyolo and Phalombe. For instance CARE Malawi had developed an
approach to RBA where there was no explicit use of rights language due to the sensitivity of
the issues: “When you start talking of accountability and transparency in your face like that
the authorities don’t always take it positively. We were aware of that. We said how can we
engage ourselves in a rights based programme but at the same time not being
confrontational?”1220 CARE also underlined the ‘responsibility’ of the communities in an
explicit way, thereby promoting self-reliance. For example, when a community becomes
aware of the resource constraints that a health centre is struggling with, they start to invest in
preventive mechanisms (“because they know that they cannot rely on this health centre, as it
is highly limited in terms of the services it can actually provide.”1221) If CARE had had a
more confrontational approach it could have assisted the community in taking the issue from
the district level to the central level, and to demanding additional resources.
Oxfam’s strategy to support channels for rights-holders’ demands was also visible in the area
of labour relations. Again, Oxfam has a dual approach where it supported the Government
Labour Office as well as the Te, Coffee and Macadamia Workers’ Union. Again, training and
sensitisation on labour regulations was a key entry point into cooperation with rights-holders
and duty-bearers alike. The training sessions on labour rights that Oxfam facilitated targeted
the general public, workers at tea estates, and other workplaces, as well as managers at tea
estates.1222
The environment in Mulanje and Thyolo, where there is a long history of plantation
agriculture and a sense of acute land scarcity (that is directed against the plantations), may
facilitate political mobilisation of villagers.1223 In this context, it has been possible for Oxfam
1216
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 264.
1217
See Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1431.
1218
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1219
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 264.
1220
Interview No. 32 with CARE, Malawi 2006. FSD2727. DFID had a programme called “Transform: Through
Rights to Needs for Marginalised Malawians (2001-2003)” that was suspended in 2003 at the request of
government. The main reason for the closure was “an underestimation of the sensitivity of the project.” See
Barnett et al., “Evaluation of DFID Country Programmes”, supra note 998, at 32.
1221
Interview No. 32 with CARE, Malawi 2006. FSD2727.
1222
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. FSD2727.
1223
Daniel Alberman, Desmond Kaunda and Mick Moore, “Fashion, Passion and Ambiguity: A review of How
DFID Malawi has Incorporated Rights-Based Approaches into its Work”, 31 March 2005. (Report is with the
author).
183
to develop a ‘soft confrontational approach’ in which demands are presented to duty-bearers,
but at the same time underlining dialogue, mutual responsibility, and action by all sides.
3.3.8 Rights-based development principles
The following section analyses what non-discrimination, participation, empowerment and
accountability meant in the SHSLP. I discuss the principles in this order because of the role
non-discrimination plays in targeting; it cannot be separated from participation and
empowerment.
Vulnerability, participation, and power: Increasing the voice of women
As stated earlier, targeting the most vulnerable has been interpreted as being part of an
equality agenda. With regard to targeting, the same ‘mantra’ that was on the lips of all
development agencies – lifting the poorest of the poor out of poverty – was also repeated by
Oxfam: “We are looking at children, chronically sick, women. Those are the key targets,
because we want to get them out of poverty.”1224
In the SHSLP, the question of who is most vulnerable was critical during the PRA exercise
that was the basis of all development interventions in the communities. The facilitators (from
government institutions) used tools such as ‘the resource walk’ to identify those with fewer or
no resources. They used simple questions such as ‘who can afford to buy bread’ or ‘who owns
a bicycle’ when categorising people into vulnerable and less vulnerable. An in-depth
discussion on the ethical aspects of ‘categorising’ people is outside the scope of this paper,
but it is clear that this process has its own inherent problems (especially since the difference
in terms of resources between the ‘vulnerable’ and ‘less vulnerable’ is very small). It should
also be kept in mind that ‘lack of resources’ or ‘poverty’ can be defined in many ways.1225
The conclusion in previous sections regarding the possible difference between using non-
discrimination as a principle in vulnerability assessment and targeting in ‘good development
practice’ compared to using non-discrimination as a lens for analysis in human rights-based
work, is that focus in the latter would be more on finding out who is marginalised and
vulnerable to exclusion and discrimination than who is vulnerable to e.g. food shortages. The
answer might be that the same individuals and groups are experiencing both discrimination
and food insecurity, but the question is different. Furthermore, when the question of why
there is discrimination and what can be done to address it, is added to the analysis and the
affected population is actively involved in the inquiry, this can potentially be the first step to
changing the situation (agency). This did not happen in the SHSLP at the time of my field
research.
In RBA it is often claimed that engagement with rights, in a social and political process, can
transform established, often hierarchical structures within society, and therefore rights can
potentially be used as entry points to challenge power relations.1226 In the SHSLP it was
recognised that addressing unequal power relations is indeed important if the so called
vulnerable groups are to be included in the development process, but it is unclear how
1224
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1225
In local languages there are four different concepts to describe the state of poverty: umphawi, kusauka,
kusowa, and usiwa. The first term means poor quality of life arising from lack of basic necessities, the second
translates into poor quality of life arising from continuous struggle to live, the third term means lack of anything
at a particular time, i.e. it refers to a temporary situation, and the forth is lack of clothing. Kasmann and Chirwa,
“Mission Report & Recommendations”, supra note 1147, at 18.
1226
Gready and Ensor, “Introduction”, supra note 70, at 23.
184
explicitly rights were used as justification for questioning hierarchical structures. “We can
only get them out of poverty through inclusion. It’s an issue of changing relations within
communities, an issue of redefining roles and responsibilities and sharing power.”1227 In
human rights terminology ‘changing relations’ means addressing discrimination. If the human
rights framework had been used as a starting point for the problem analysis, that is basically
what the participatory rural appraisal is concerned with, questions around vulnerability would
focus on discrimination, non-inclusion, and equality in the opportunities to participate instead
of lack of resources alone. Dividing the villagers into categories based on their economic
status is as such not enough to establish patterns of exclusion and marginalisation.
The first priority seems to have been to ensure the participation of vulnerable groups in the
community structures such as the VDCs and its sub-committees. The SHSLP had a policy that
there should be equal representation of both sexes in the VDC, so that half of the 10 members
were to be women. In addition, groups such as people living with HIV should be
represented.1228
Ensuring equal participation is indeed important since the VDC and other committees play a
key role in community development. After the PRA, where priority problems were identified,
the villagers together with the service providers made a development plan for the village. The
implementation of the plan was in the hands of the VDC. In practice this meant that the VDC
applied for funding from the District Development Fund for small scale interventions (e.g. in
the area of clean water).1229
In the programme area the kinship structure is matrilineal, meaning that heritage of property
such as land passes through the female line. Female and male children alike inherit property
from their maternal uncles and not their fathers.1230 After marriage the husband settles in the
village of his wife. In theory, this provides for a strong economic position for women,1231 but
it became clear during the interviews that in practice decisions about and control over land are
taken by the man in the family.1232 Studies have shown that women’s rights to land in such
matrilineal systems are more theoretical in nature.1233 Additionally, it should be noted that
leadership positions are usually held by men.1234 Success or failure in promoting women’s
real influence over the politics of development through having a voice in elected village
bodies is not easy to demonstrate. Ensuring formal participation by women is not enough if
the female representatives sit quietly at the back. However, an outspoken effort to have equal
representation by women in VDCs has made it possible for women to take part in decision-
making.1235
When speaking of women and participation, it is necessary to elaborate on the concepts of
power and empowerment. As mentioned previously, Rowlands points out that some
definitions of power focus on the ability of one person or group to get another person or group
1227
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1228
Interview No. 7 with Oxfam, Malawi 2006. This policy was mentioned also during the two group interviews.
1229
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1230
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra 1158, at 210.
1231
Kasmann and Chirwa, “Mission Report & Recommendations”, supra note 1147, at 4.
1232
Interview No. 7 with Oxfam, Malawi 2006; Interview No. 5 with Oxfam, Malawi 2006; Interview No. 25
with Ministry of Lands, Physical Planning and Surveys, Malawi 2006; Group Interview No. 4 with female
members of Church and Society in Mulanje District, Malawi 2006. FSD2727.
1233
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra note 1230, at 211.
1234
Kasmann and Chirwa, “Mission Report & Recommendations”, supra note 1147, at 4. See also Gilman, The
Dance of Politics, supra note 982.
1235
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
185
to do something against their will.1236 When defining power as ‘power over’ (being able to
control something, even having control over another group), then empowerment means
bringing people who are outside the decision-making process into it.1237 Oxfam and the
SHSLP seem to have aimed at empowering women in this conventional meaning of the word.
There was strong emphasis on women’s participation in political structures and formal or
informal decision-making. This indicates that participation had a broader meaning and agenda
behind it than what was the case in the JEFAP. Women and men did not participate merely as
‘beneficiaries’ but also as citizens and rights-holders.1238
Using the conventional definition of power as ‘power over’, i.e. if one group gains power it
will be at the expense of another group’s power position,1239 usually creates tensions. One
such group was the village heads, who had given up part of their power to other community
structures such as VDCs.1240 Because the SHSLP underlined equal participation and the
importance of fair representation in the VDC and its subcommittees, Oxfam staff believed
people had been empowered to question the position of the village head men. “People used to
see the village headman as God, they would not question him. But now they can say no.”1241
It seemed, however, that the position of the village heads varied from one village to another. It
would be naïve to think that problems around the power position of traditional leaders have
been solved. In many villages people were still afraid of the village head man and would not
confront him with concerns about corruption, for example, during the distribution of
government subsidised fertilizer coupons. “We are voiceless because it’s our village headman
who is doing that [corruption]. We have no power. We are afraid.”1242
Participation has been an important theme since the beginning of the SHSLP, when one aim
was to teach participatory methods to government extension workers. It seems that, in the
SHSLP, participation has a broader meaning than functioning as a developmental tool
(although PRA is such a tool). The aim was not only to involve and activate people around
common development problems, and thereby increase a sense of ‘ownership’, but also to
address issues of equality and power and thereby to increase the voice of the voiceless.
Participation, nevertheless, remained at the district level instead of making efforts to increase
the voice of community members at a central level, where policy decisions are actually made.
Empowerment as being aware that ‘I have a right’
What we have seen in the chapter on food assistance is that empowerment is often linked to
building capacity and ‘handing over power’ to local structures. There are, however, other
ways of conceptualising power than ‘power over’, i.e., power as domination. When women
(or other marginalised groups) gain ‘power to’, ‘power with’ and ‘power from within’ rather
than ‘power over’ this entails a very different meaning of empowerment.1243 Within these
non-dominative interpretations of power, empowerment is concerned with the processes by
which people become aware of their own interests – perhaps in this case defined as rights. As
1236
Rowlands, Questioning Empowerment, supra note 897, at 9.
1237
Ibid., at 13.
1238
Comapre with Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
1239
Rowlands, Questioning Empowerment, supra note 897, at 11.
1240
As an example it can be mentioned that some chiefs also feel threatened by the village rights committees and
community based educators. Group interview No. 11 with Community Based Educators, Malawi 2006.
FSD2727.
1241
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1242
Group Interview No. 4 with female members of Church and Society in Mulanje District, Malawi 2006.
FSD2727.
1243
Rowlands, Questioning Empowerment, supra note 897, at 12.
186
put by Rowlands: “Empowerment is thus more than participation in decision-making; it must
also include the processes that lead people to perceive themselves as able and entitled to
make decisions.”1244 In the SHSLP it seemed that as women became aware of ‘I have a right’
this process started, whether this is the intention of the programme or not.
This awareness means adopting a new sense of self that incorporates rights.1245 Research by
Merry shows that the rights framework does not displace other frameworks but adds a new
dimension to the way individuals think about their problems.1246 The same research also
shows that the human rights framework is powerful because it shows that something, such as
gender violence or hunger, is not natural and inevitable.1247
When engaging in a human rights-based approach to development, the aim is not just
‘empowerment in general’, or ‘building capacity in general’, but empowerment in relation to
claiming and realising human rights. Rights-based empowerment is concerned with knowing
your rights, acting on them and holding duty-bearers to account.1248 Rights language is
therefore a key factor in the empowerment process. ‘A rights-holder’ is per definition entitled
to something (what he or she is entitled to, is often defined by the actors themselves, as we
have seen).
As can be recalled, in the SHSLP, human rights language is far from that used in international
human rights covenants, and in fact closer to the everyday reality of power struggles over
resources. In the two communities that I visited, one in Mulanje and one in Thyolo, people
referred to the right to services, the right to development, the right to food etc.
Human rights-based empowerment usually highlights the formal and external aspects of
creating an environment in which people can empower themselves. Emphasis is on enhancing
people’s ability to claim and exercise their rights effectively.1249 There is usually no
questioning whether people value expanding their skills and choices into claiming and
exercising their rights. (The aspect of empowerment emphasised by Naila Kabeer and
Amartya Sen.) The data I have about the SHSLP is not rich enough to make a conclusion
about how active the actors have been in setting the agenda, but it seems that within at least
the radio listening clubs there was a genuine possibility to engage in any challenge the
community faced. Whether the club members chose to apply a rights language to make their
claim was something they did if it made sense in their lived reality. Beneficiaries also played
a crucial role in PRA by e.g. choosing priority intervention for the own community. The
absence of a clear link to any specific list of rights in Oxfam’s work in the SHSLP gave room
for an actor-oriented approach to rights-based development, creating space for participation
and empowerment, rights and obligations. Otherwise there is always a risk that the priorities
and perspectives of the local actors become over-shadowed by an approach focusing on a
specific rights-based target such as a specific right.1250
Among Oxfam staff and extension workers there was a high level of optimism that human
rights language has already by itself empowered the communities. “The trainings [on rights]
1244
Rowlands, Questioning Empowerment, supra note 897, at 14 (emphasis in original).
1245
See Merry, Human Rights and Gender Violence, supra note 287, at 181.
1246
Ibid., at 180.
1247
Ibid., at 180.
1248
Danish Institute for Human Rights, “Malawi Baseline Data, Malawi HIV/AIDS programme 2005-09”,
Baseline research 2005-06, report of 2006, at 18. Available at http://www.humanrights.dk/files/pdf/
Publikationer/ Forskning/hos3.pdf, visited 2 February 2012.
1249
See e.g., Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note
708, at 51.
1250
Newman, “Challenges and Dilemmas in Integrating”, supra note 863.
187
are more or less like an eye opener. They never knew before and they say now they know.
And it’s like they know their rights and they know they have the right to demand services
from each and every sector of government.”1251 The question is whether awareness of the fact
that ‘I have a right’ is enough? The capacity to actually take action and claim rights from
government institutions (to demand services), or to start a process to seek redress for a
violation (this could mean visiting the labour office or the police) was still very low in the
communities. The small office of Malawi CARER (with two staff members) did not have the
resources to assist village rights committees and volunteer community based educators in the
220 villages in the programme area.
A baseline research carried out in Malawi by the Danish Institute for Human Rights the same
year as my visit to Mulanje and Thyolo (2006) revealed that rural rights-holders (small-holder
peasants, pieceworkers and fishermen) were barely confident to make claims that went
beyond their community. This was mainly because of low expectations as regards the
structures of local governance. They tended to see making claims as futile efforts for the
reason that the capacity and willingness of district authorities to respond to such claims were
deemed weak or non-existent by community members.1252 The data was collected in
completely different districts (Salima and Nkhotakota),1253 and cannot be directly applied to
the situation in the SHSLP districts, but I share the observation that in order for meaningful
exchange to take place, duty-bearers have to feel and act responsible. Sano observers that this
is more likely to happen when NGOs facilitate linkages between communities and district
authorities.1254
In order for rights-based empowerment to take place, community members cannot be left
alone in the struggle to make demands. Leaving things at the point of rights awareness is not
enough. ‘Preaching the language of rights’ is not very effective if there is no link to
interventions and to action-taking. If rights are to be empowering, people need to become
involved, to mobilise in a struggle for social justice, not to just be passive listeners taking in
knowledge from outside experts. The secret behind the popularity of the radio listening clubs
is perhaps to be found in the active role of the participants. There was a conviction that
through radio listening clubs communities can mobilise themselves and make a difference.1255
The popularity of the weekly radio show meant that the DBU was under pressure to set up an
increasing number clubs.1256
Mobilising rights-holders to claim rights from duty-bearers while at the same time building
the capacity of the duty-bearers to respond to the demands, has been a creative and
empowering way to engage in rights-based development. At the same time, it should not be
forgotten that also duty-bearers need to be empowered. Duty-bearers should not only be
aware that ’I have an obligation’ but also have the tools to fulfil this obligation. It will be a
1251
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1252
Hans-Otto Sano and Hatla Thelle, “The Need for Evidence-Based Human Rights Research”, in F. Coomans,
F. Grunfeld & M. T. Kamminga (eds), Methods of Human Rights Research (Antwerp: Intersentia, 2009) 91-109,
at 102. Research carried out by Sally Engle Merry supports that “vulnerable individuals’ willingness to adopt a
rights framework depends in part on the way institutions respond to their rights claims.” Merry concludes that
poor women see themselves as rights-subjects only when powerful institutions treat them as if they are rights-
subjects. Merry, Human Rights and Gender Violence, supra note 287, at 215.
1253
Danish Institute for Human Rights, “Malawi Baseline Data”, supra note 1248, at 4.
1254
Sano and Thelle, “The Need for Evidence-Based Human Rights Research”, supra note 1252, at 102.
1255
The level of optimism about what the local Radio Listening Club can achieve was high in the village. Group
Interview No. 2, Malawi 2006. FSD2727.
1256
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
188
long journey before district level government service providers in Mulanje, Thyolo and
Phalombe have those tools.
Accountability: putting pressure on the government
The traditional approach to accountability is concerned with providing checks and balances in
the development process. In the SHSLP there was also the ambition that actors should account
for their actions and for how they have spent resources. However, as we will see below,
accountability was taken somewhat further, into the area of mobilising communities to putting
pressure on duty-bearers, thereby linking accountability to obligations, and rights-based
empowerment.
Accountability is often linked to ‘good governance’ and this is also the case in the SHSLP.
Oxfam claimed it promoted good governance in the name of effective monitoring of how
funds were being used. With regard to the funds used by communities for small scale projects
it was the task of District Assemblies to do the monitoring. At the village level, the
community structure that was responsible for the project organised public meetings during
which they accounted for how the money was spent.1257 Here it should be noted that the VDC
acted as duty-bearer in this instance.
As we have seen, new accountability relationships and frameworks emerge when human
rights enter into development policies and practices. There is stronger focus on the state-
citizen relationship as compared with the donor-implementing agency accountability
relationship. What is striking in my data is that local representatives of the government
resisted when Oxfam tried to make changes in how accountability relationships worked, e.g.
through giving the District Executive Committee the role of approving or rejecting the
applications for funding of local development projects, a role that Oxfam used to have. This
might indicate that local actors were unwilling to assume the role of active actors and would
have preferred to be passive beneficiaries of interventions.
Oxfam made changes in accountability relationships and tried to take a more passive role. The
new system of providing funding through the District Development Fund, instead of through
Oxfam, however, caused concerns that it would actually lower the level of accountability.
Since the members of the District Executive Committee approved or rejected the applications
for funding, and the members were politicians, there was fear of politicisation of these
interventions. “When they [the DEC members] are making these approvals there are so many
biases. We find where there are strongholds, where they are more powerful within the
government, we find most of the projects will go there to leave the other areas where there is
little power. Government cannot do what Oxfam is doing because of issues of transparency
and accountability.”1258
One ‘monitoring tool’, that also aimed to increase the level of participation and
accountability, was regular meetings called ‘How is development progressing?’ (Chitukuko
Chikuyenda Bwanji). The VDC members met extension workers to discuss how the
development plan for the village was progressing, and to take stock of successes and
failures.1259 This was an opportunity for community members to confront the extension
workers with complaints about not fulfilling their obligations.1260 The political culture in
1257
Oxfam, “SHSLP Annual Report”, supra note 1149, at 6.
1258
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1259
Oxfam, “SHSLP Annual Report”, supra note 1149, at 9.
1260
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193.
189
Malawi was, however, still flavoured by almost 30 years of authoritarian regime, and
questioning people in authority was something people were not yet comfortable with.1261
Therefore, even if these monitoring meetings provided the space to confront government
extension workers, it may have been difficult to uphold an atmosphere where it was actually
possible to do so. “People still have the mindset that standing up and claiming rights might be
an issue that might face them with certain consequences. They are still fearful about that.”1262
The question is also whether it is effective to demand accountability from individual
extension workers at the district level when they in reality have no power to decide about
resource allocation for their department. As regard to demands about services as a matter of
meeting obligations, radio listening clubs might be more effective since the programmes are
aired on national radio. This means that the accountability element is taken all the way up to
the central government – at least indirectly. If there is enough attention towards the district
level government’s inability to act, the central government will have to respond. “So you find
Lilongwe, that is kind of the headquarters, calling the district offices, trying to find out what
they [the district office] proposed they would do in the village, and asking why it has not been
accomplished. They had promised to do something and they didn’t do it.”1263 This could mean
that it is feasible to use the radio as a tool to put pressure on the central government. “I’ve
seen some improvements in service delivery in some of the areas mainly in government
departments. I’ve seen some top officials taking action, even if they have not been to the area,
they have heard that the government officers are not providing. So some top officials have
reacted by taking positive actions.”1264
In the SHSLP demanding accountability from duty-bearers in the area of services was at the
heart of the programme. However, human rights were the platform for these demands on a
political, or rhetoric, not legal level. There was no legal analysis of what the various rights,
stemming from the Constitution of Malawi as well as international instruments, actually could
mean in terms of services. The leading organisation, Oxfam, was not a human rights watch
dog, naming and shaming duty-bearers, testing the legal provisions in courts, or other forums.
The legal framework was not seen as an avenue for holding duty-bearers accountable. This is
natural in an environment were most people, especially poor people, do not seek justice from
formal courts but rather from traditional leaders, religious leaders, family counsellors, and
other non-state actors.1265 In the SHSLP it was assumed that outcomes from development
interventions (roads, schools etc.) are, or should be, de facto rights for the people. It was the
act of identifying rights-holders and duty-bearers (and their obligations) that was key.
Accountability was in this context about a political process where citizens put pressure on the
government to deliver certain services, and these services were understood to be part of a
rights agenda. Accountability was linked to obligations, but without making explicit linkage
to legal provisions.
It can be argued that rights-based approaches to development such as that used in the SHSLP
contribute to taking human rights into new areas, in the search for, and struggle over, a new
1261
It should be noted that the Banda regime was known for brutally silencing all political opponents. Torture,
political killings and disappearances were widespread. Analysts agree that, although there is now freedom of
speech and assembly, violence, corruption, and nepotism are still part of Malawian political culture. See Harri
Englund (ed.), A Democracy of Chameleons: Politics and Culture in the New Malawi (Uppsala: Nordiska
Afrikainstitutet, 2002).
1262
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1263
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1264
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1265
Dan Banik, “Human Rights for Human Development: The Rhetoric and the Reality”, 30 Nordic Journal of
Human Rights (2012) 4-35, at 31.
190
rights regime.1266 In this new rights regime there is not necessarily any strong link to the
human rights instruments as these are being interpreted in present jurisprudence. For members
of radio listening clubs it made sense to equate services and rights, to claim needs as rights.
This is a defining feature of the protest school and is in opposition to what Baxi calls “human
rights as ethical imperatives”. An ethic of human rights insists on what communities and
individuals ought to desire.1267
3.3.9 Concluding remarks
It is striking that the SHSLP included a wide variety of activities; it seems that flexible
planning allowed for anything from provision to improved seeds to awareness rising from
land policy. In some of the interventions it was difficult to find even an implicit link to human
rights and also in the so called rights-based interventions explicit analysis of how the
particular activities contributed to human rights was lacking. The programme had no rights-
based goal, but had instead introduced rights as one component of the overall goal to
strengthen food security and reduce poverty. In the report by Oxfam ‘Rights Based
Approaches’ was, however, put as a separate heading,1268 instead of allowing RBA to inform
every aspect of the programme. This would suggest that the activities related to rights were
seen as new ‘add-ons’ to old working methods, implying no fundamental shift in the rationale
behind the development intervention.1269
This is one way of presenting how the programme fits into a broader context of what role
human rights play in development interventions. Another way (and the one I prefer) is to say
that everything that the programme did was informed by the aim of supporting the capacity of
the district level duty-bearers to deliver rights/services and at the same time generating
awareness of and demand for these rights among communities through training and through
radio listening clubs. It can be argued that the programme viewed all services as rights, and
enableling government extension workers to include e.g. improved seeds is therefore part of a
rights agenda. Oxfam and its partners were working to create a culture of human rights where
rights-holders would be able to claim needs as rights and where duty-bearers would be clear
that they have an obligation to respond.
This is a considerable shift in human rights discourse in Malawi that has focused on rights as
freedoms rather than rights as entitlements. Having such a strong focus on the responsibility
of the duty-bearer is also a change from a discourse that has previously emphasised the
responsibility of the rights-holder. Perhaps Oxfam, an actor outside of the human rights
movement, has another way of working with human rights that is less focussed on the legal
framework. In this approach, Oxfam and its partners were, moreover, not avoiding political
issues – but the pressure on duty-bearers remained at a district level instead of taking them all
the way up to the main duty holder, the Government.
In human rights terminology, ‘positive obligations’ could be used to describe government
services, including services needed after a violation has taken place, e.g. in the area of
delivery of justice, and ‘negative obligations’ to describe preventative action to hinder
violations from taking place, e.g. community policing, or labour inspections. Oxfam has
managed to make the district government extension workers to take the programme activities
1266
Gready and Ensor, “Introduction”, supra note 70, at 6-7. E.g. Oxfam has introduced its own list of rights that
it promotes. On this issue see Olivia Ball, “Conclusion”, in supra note 70, 278-300, at 290.
1267
Baxi, The Future of Human Rights, supra note 358, at 7.
1268
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7.
1269
See Uvin, “On High Moral Ground”, supra note 51, at 2.
191
onboard in their work, instead of allowing them to merely cooperating with Oxfam, which is
often the norm in development cooperation. This is a good achievement but the question mark
is how well the role of the central government, as the ultimate duty-bearer of human rights
obligations, has been taken into consideration. It is worrisome that service delivery, defined as
rights by community members, was almost completely dependent on the support of an
international NGO.
As we have seen there was no strong link to the legal framework to support the line of
reasoning that services are rights. My impression is that everything that was seen as
‘development’ before was turned to ‘rights’, without any deeper analysis. The conscious
choice to deal with rights issues at this level (“we have tried not to look at rights as documents
but something that is part of everyday life”)1270 can be put into the conceptual framework of
an actor-oriented approach to rights-based development. In this context at least the following
factors should be taken into account. It is not sustainable to view all needs as rights; there
needs to be debate about the content of concrete rights. There is a risk that rights language
may, in the long run, loose its value and legitimacy if it is used without a clear basis in norms
and standards. Without a link to the legal framework the normative nature of human rights
could be weakened. However, rights language may lose its empowering effect if the approach
becomes too legalistic and abstract. The impression from the group interviews with
community members was that becoming aware that ‘I have a right’ was indeed empowering.
Empowerment was in this case a process that led these people to perceive themselves as able
and entitled to make claims and demand accountability.1271 With continued efforts to support
the mobilisation of rights-holders there is a chance that rights issues can become part of a
struggle for social justice in Mulanje, Thyolo and Phalombe.
Looking back at my hypothesis about the possible added value of human rights-based
approaches to development, i.e., has the introduction of ‘rights talk’ led to a shift in the
attitudes among Oxfam staff and government extension workers so that provision of services
is seen as a matter of obligation? It is difficult, if not impossible, to ‘prove’ that human rights
language has changed the mindset of the actors in the SHSLP, to move from a charity-based
to a rights-based approach to service delivery. However, it is clear that the ambition is to
convince district level government to move in that direction, although the legal reasoning to
back up this claim might be weak. However, the key issue is that there is a shift from viewing
services as ‘charity’ to dealing with them as ‘rights’. The challenge is that this shift is not
sustainable if it takes place only among local level duty-bearers and not in central
Government.
Neither Oxfam nor government partners had made any systematic effort to do a human rights-
based situation or problem analysis, but it is interesting to note how community members
themselves identified problems in terms of rights. Even though it is not clear how widespread
this practice was among the radio listening clubs, the one example referred to earlier indicates
that human rights can play a role when preparing to mobilise and demand accountability of
duty-bearers. In addition, the participatory rural appraisals could move in this direction, by
asking which rights remain unfulfilled, why this is the case, which duty-bearers should take
action, what changes are needed in policy and practice.
Although policy issues are on the agenda of the SHSLP, a systematic human rights-based
problem analysis would probably mean that there is more attention paid to addressing
structural causes of hunger (lack of land, lack of services, lack of influence) at policy level
1270
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1271
Compare with Rowlands, Questioning Empowerment, supra note 897, at 14.
192
instead of addressing short-term needs (that can be seen as ‘symptoms’ of past policy
decisions). The risk with moving in that direction is that problem analysis may become less
participatory, carried out by ‘experts’ with a good knowledge of the overall policy
environment instead of the beneficiaries themselves. Beneficiaries play a crucial role in
current PRAs by e.g. choosing priority intervention for the own community. In a resource
constrained environment community members tend to prioritise short term interventions such
as provision of improved seeds – and giving them the liberty to do so is in line with the
principle of participation and empowerment. It is not easy to strike a balance between a
legalistic (elite) approach and a participatory (grassroots) approach.
The principle of accountability was in the SHSLP used as a basis to put pressure on
government institutions to live up to promises that were made during meetings between
service providers and community members. This line of reasoning is definitely a step away
from the managerial approach to accountability that was characteristic of the JEFAP. A
problem was that accountability demands stayed at the district level instead of targeting the
central government with power to decide over resources and policy priorities. This was done
in combination with efforts to increase transparency and participation by previously excluded
groups (e.g. women) in decision-making. Rights language again played an important role, as it
was argued that services are a matter of fulfilling human rights obligations.
Human rights indeed seemed to be a platform to demand that duty-bearers are held
responsible for their actions and non-actions in the area of services in the programme area, at
least on a rhetorical level. It is interesting to see how, in the process of formulating human
rights claims, the actors reshape and broaden what is normally understood to be human rights,
taking the human rights agenda into the area of services. There is no question that through
rights-based approaches, the development discourse challenges the traditional understanding
of ‘human rights’.
3.4 A legal approach to food security: Legislation as a tool for transformation
What is characteristic of a ‘legal’ approach to food security? How is the role of human rights
different compared to the other two projects? Through an analysis of the right to Food Project
I also attempt to answer broader questions on human rights discourse in Malawi. Can the
newborn interest in socioeconomic rights in Malawi contribute to a human rights discourse
that underlines the political implications involved in taking human rights obligations
seriously? Are the organisations involved in the Right to Food Project contributing to
challenging the status quo, i.e., is the Right to Food Project contributing to societal and
political change that strengthens the position/voice of rights-holders, and helps to increase the
protection of their human rights and possibilities to demand accountability from duty-bearers?
Is the right to food discourse, lobbying for national legislation on the right to food,
empowering for rights-holders?
There is no written material about the project and therefore I have relied on my interviews
with staff from key member organisations and two group interviews with members of a local
branch of Church and Society in Mulanje as the basis for this analysis.
3.4.1 Introduction to the Right to Food Project
The so called Right to Food Project was started within Church and Society in 2003.1272
Church and Society is the human rights department of the CCAP Blantyre Synod, established
1272
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
193
in 1993, around the transition to a multiparty democracy. As all other human rights groups in
Malawi,1273 Church and Society had originally focussed on civil and political rights but
gradually it felt the need to move into the area of economic and social rights. As a
consequence the Right to Food Project was setup with the support of faith-based donors in
Canada.1274
In the first year of the Right to Food Project a lawyer was contracted to draft a bill on the right
to food.1275 This bill, called the Food and Nutrition Security Bill, was presented to the
Parliamentary Committee on Agriculture and Natural Resources in order to gain their support
for the initiative. Furthermore, the right to food bill was presented during “awareness
meetings with the clergy”.1276 The Food and Nutrition Security Bill was therefore an initiative
by civil society. The draft analysed in this chapter has later been updated with input from the
Ministry of Agriculture, the Malawi Human Rights Commission and the Malawi Law
Commission. It has, however, not been adopted and the National Right to Food Network
continue to lobby for the enactment of the draft bill. The main obstacles are said to be the
misunderstandings around the concept of progressive realisation and fear that the bill places
obligations on government that are too heavy.1277 Thus far, one act (The Prevention of
Domestic Violence Act, April 2006) has been successfully passed in Malawi based on a bill
from civil society organisations.1278
After the initial stage of the project Church and Society decided to contact other civil society
organisations in order to establish a national Right to Food Joint Taskforce. This taskforce is a
loose network of human rights organisations as well as developmental NGOs working in the
area of food security. Although the project is an example of joint advocacy by human rights
and development NGOs1279 it would be an overstatement to say that these two set of
organisations have truly joined forces under one project. The member organisations say their
common aim is the adoption of an act on the right to food, but they work individually and
focus on different ways to strengthen the right to food. While Church and Society has drafted
a bill, Action Aid, for instance, has focused on lobbying for the inclusion of a reference to the
right to food in the Malawi Food Security Policy.1280 Advancing the status of the right to food
as a legal norm is, however, a common objective for the organisations and therefore it is
possible to analyse the activities of the taskforce as a legal approach to food security. The
Taskforce later evolved into a registered NGO called the National Right to Food Network.1281
1273
Before 1993, there were no human rights organisations in Malawi. It was especially in the late 1990s that
human rights NGOs began “sprouting up” in Malawi. Interview No. 19 with NGO, Malawi 2006. Harri Englund
points out that it was after 1999 that civic education on rights and democracy gained momentum in Malawi. See
Englund, Prisoners of Freedom, supra note 414, at 96.
1274
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1275
Interview No. 15 with Church and Society, Malawi 2006. The copy of the draft bill that the author has
received from Church and Society is entitled Food and Nutrition Security Bill. According to the draftsperson the
draft bill was presented in early 2005. Interview No. 16 with draftsperson of Food and Nutrition Security bill,
Malawi 2006. FSD2727.
1276
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1277
E-mail interview with Church and Society, August 2012.
1278
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1279
On this general trend of closer cooperation between human rights and developmental NGOs, see Paul J.
Nelson and Ellen Dorsey, “At the Nexus of Human Rights and Development: New Methods and Strategies of
Global NGOs”, 31 World Development (2003) 2013-2026.
1280
In the Food Security Policy, there is a statement that “[c]ognisant of the provisions for the protection of
human rights and freedoms as enshrined in the Constitution of Malawi, the right to adequate food is fully
accepted as a human right.” Ministry of Agriculture and Food Security, Food Security Policy, August 2006, at 5.
1281
E-mail interview with Church and Society, August 2012.
194
At the time I visited Malawi, there was a constitutional review process underway and a
Special Law Commission had been set up for this purpose. Civil society organisations,
including member organisations from the Right to Food Taskforce, were represented on the
commission. Some efforts to include specific reference to the right to food were taking place.
“We thought we could push for the express recognition of the right to food in the constitution.
And the civil society did make its proposal to the [Special] Law Commission and since we are
represented in the Special Law Commission that will review the Constitution, we hope those
representations are going to be taken into account.”1282 In a similar vein: “The right to food is
not clearly specified in the Constitution and we would like it to be properly recognized.”1283 It
seems that different member organisations concentrated on advocating for stronger protection
of the right to food through different avenues: some focused on stronger constitutional
protection, others on stronger policy and yet others on a specific act on the right to food.
3.4.2 Background: The famine of 2001/2002
In order to understand the discussions about the right to food in Malawi it is necessary to look
back at the 2001/2002 famine. Action Aid, which is a member organisation of the Right to
Food Taskforce, facilitated research concerning the causes and consequences of the famine
and in this context the right to food was briefly broached for the first time.1284 It was
especially the accusations of mismanagement on the part of the government that raised the
issue of the right to food. “It happened that in 2001 we had a food crisis which was triggered
by mismanagement.”1285 The informant is here referring to the fact that in 2001 the National
Food Reserve Agency (NFRA) sold almost all of the Strategic Grain Reserve (SGR) at a
critical point. The NFRA had a mandate to maintain buffer stocks of grain and in 1999 and
2000 the SGR held a near full storage capacity of 180,000 MT of maize. Part of the story is
that this stock was bought with money borrowed at an annual interest rate of 56 per cent. This
again is explained through the privatisation of the management of the reserves. Before 1999,
SGR was managed by Admarc, which is the agricultural marketing parastatal agency. Donors,
including the IMF and the EU, however, decided that national grain reserves should be “run
independently and on a cost-recovery basis” (i.e. should be privatised) and therefore the
NFRA was created in 1999.1286 As no government funds were available, the newly established
agency took loans from commercial and government banks to purchase maize from
Admarc.1287
The chain of events and decisions that led to the deletion of the SGR is at the core of the
argument that the famine had ‘political’ reasons – not ‘technical’. (The ‘technical’ explanation
is that the famine was a result of production failure, information constraints, a depleted food
reserve, import bottlenecks, and high food prices.) According to the political explanation, it is
1282
Interview No. 16 with draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1283
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1284
Devereux, “State of Disaster”, supra note 122.
1285
Interview No. 20 with NGO, Malawi 2006. FSD2727.
1286
In the 1980s, the proponents of structural adjustment found that ADMARC’s market infrastructure was
already inefficient, required heavy subsidies, drained the national treasury, and created disincentives for private
sector entry into the maize market. Privatisation of ADMARC was recommended in the Malawi Poverty
Reduction Strategy Plan but the government resisted implementing all the changes towards full privatisation to
avoid risking popular support. See Caroline Sahley et al, “The Good Governance Dimensions of Food Security
in Malawi”, USAID, September 2005, 46-47. Available at http://pdf.usaid.gov/pdf_docs/PNADE034.pdf, visited
February 2012.
1287
Devereux, “State of Disaster”, supra note 122, at 9. See also Samdup, “The Human Right to Food in
Malawi”, supra 145, at 50; Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra
note 1286, at 48.
195
claimed that the IMF instructed the Government of Malawi to sell the maize in the Strategic
Grain Reserve in order to repay the debt incurred by the setup of the NFRA. The IMF for its
part maintains that it only advised the government to sell part of the SGR to service its
debt.1288 The SGR sell-off was raised by one informant as a human rights violation: “It didn’t
make sense to just sell the SGR and then maize is scarce. That was more or less carelessness
and a human rights violation because you can’t play with such an important commodity just to
make sure you want to make profit, it was supposed to serve the needs of the people. By then
the signs of the food crisis were visible and people were dying and everything.”1289
Moreover, private traders were accused of having profiteered from the sale of the SGR
(buying maize when prices were low and holding it until prices rose; making large profit).1290
In addition, this issue was linked to the right to food. “The allegation that private traders
deliberately purchased SGR maize cheaply in order to hoard and resell it at excessively high
prices during the food shortage is an extremely serious accusation. Profiteering from hunger
violates the basic human right to food.”1291 There had even been speculation that local
politicians were involved in these activities. A list of people who had purchased maize from
the SGR was published, and this list included a number of prominent names.1292 Moreover,
the Anti-Corruption Bureau accused several Malawian politicians of benefiting from the sale
of the reserves. A Presidential Commission of Inquiry was set up to investigate the sale of
SGR maize.1293 The report by the Presidential Commission blamed donors for the
mishandling of the SGR (for putting forth the idea of forming the NFRA to take over
responsibility of the SGR from Admarc when the government had no readily available
resources for this purpose). The Anti-Corruption Bureau had a different view on the scandal
and recommended in July 2002 that the Director of Public Prosecutions order investigations
into charges of criminal recklessness and neglect acts against seven people. The list included
the Director of Admarc, Friday Jumbe, who later became the Minister of Finance.1294
Despite these efforts, my informants were not satisfied with the level of accountability. “The
crisis that happened in 2002 and politicians were found to have participated in mismanaging
the food stocks, never have they been taken to court. I know from rights perspective some
activists have said that by then if we did have a right to food law that would have made
litigation possible.”1295
Against this background, the drafter has made an effort to address profiteering issues in the
Food and Nutrition Security bill. Draft Section 6 states:
Any person who practices unfair trade practices which:
b. takes advantage of vulnerable persons by exerting undue pressure or undue
influence on such person to enter into a transaction related to food production,
marketing, storage, supply, processing or consumption;
Shall be guilty of an offence under this part.
1288
Devereux, “State of Disaster”, supra note 122, at 1. See also Roshni Menon, “Human Development Report
2007/2008: Famine in Malawi – Causes and Consequences”, Human Development Report Occasional Paper, at
6. Available at http://hdr.undp.org/en/reports/global/hdr2007-8/papers/Menon_Roshni_2007a_Malawi.pdf,
visited 10 May 2012.
1289
Interview No. 22 with civil society network, Malawi 2006. FSD2727.
1290
Devereux, “State of Disaster”, supra note 122, at 2.
1291
Ibid., at 3.
1292
Devereux, “State of Disaster”, supra note 122, at 11.
1293
Samdup, “The Human Right to Food in Malawi”, supra 145, at 50.
1294
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 48.
1295
Interview No. 20 with NGO, Malawi 2006. FSD2727.
196
Furthermore, other sections of the draft bill tried to address problems such as those
encountered in 2001/2002. Section 4d included a reference to “rules regarding management of
strategic grain reserves including draw down there from” and in 4e “prescribing minimum
strategic food reserve levels.” This can be seen as an attempt to make sure there is better
regulation of the SGR, which is also a top priority for all donors. In 2004, the government and
donors formed a joint oversight committee of the NFRA to monitor and authorise release of
the SGR.1296
Going back to the events in 2001/2002, a State of Disaster was finally declared by President
Muluzi on 27 February 2002, although information indicating famine was already available in
late 2001, but the credibility of this information was questioned. Save the Children had
published a report in October 2001 that indicated that maize prices had risen by 340 percent
and maize production had fallen drastically.1297 The organisation recommended an emergency
response but this was rejected. The Malawi Economic Justice Network mobilised activist
groups, campaigned in the media, and pressured the government to declare a famine.
International media (BBC, CNN and others) broadcasted reports from Malawi in February
and March 2002, which showed that in the case of Malawi the media was a late indicator of
stress, not an early warning.1298 Sen and Dréze have argued that informal systems of warning
such as newspaper reports and public protests serve the dual function of bringing information
the authorities can use and elements of pressure that “may make it politically compelling to
respond to these danger signals and do something about them urgently.”1299 The argument
contends that famines are therefore best prevented in pluralistic political systems with open
channels of communication.1300 The Malawi famine of 2001/2002 shows that famine is not
always prevented despite available information and pressure from the public.
It is clear that the President was late in declaring a state of emergency; the disaster had
already taken severe forms. There are no official estimates of excess mortality due to the
famine and exact figures of the number of deaths are not available. Lists of names collected
by civil society groups indicate that between 1,000-3,000 people died from famine related
deaths. If one is to compare with previous sever famines in Malawi’s modern history, the
Nyasaland famine of 1949 resulted in an estimated 200 deaths.1301
It was not only the government that did not take the information about the serious food
shortages seriously; also donors were slow in responding, although they eventually provided
food aid. This can perhaps be explained through the fact that the relationship between the
government and the donors was not the best: in November 2001 several major donors
(including UK, EU, Denmark and the US) had suspended their aid programmes because of
alleged corruption, economic mismanagement, and political violence by government
supporters against the opposition.1302 During the past years much has changed and Malawi’s
President Bingu Mutharika (2004-2012),1303 enjoys a better relationship with donors; the
general perception is that the Mutharika administration tried to ‘check corruption’.1304 It also
1296
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 34.
1297
The report of 2001 is cited in Reliefweb, “Nutrition Survey Report, Salima and Mchinji Districts”,
September 2002, at 2. Available at http://reliefweb.int/node/409474, visited February 2012.
1298
Devereux, “State of Disaster”, supra note 122, at 7-8.
1299
Sen and Drèze “Hunger and Public Action”, supra note 32, at 263.
1300
Ibid., at 264.
1301
Devereux, “State of Disaster”, supra note 122, at 18.
1302
Ibid., at 14-15.
1303
President Bingu Mutharika died of a heart attack in April 2012. Vice president Joyce Banda, know as a
women’s rights campaigner, acts as president until the following elections in 2014.
1304
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 34.
197
seems lessons were learned from the awful experiences in 2001/2002. “The famine in 2001,
that was a huge embarrassment, it was burnt in as failure in most politicians minds. And I
think lessons learned after that, incorporated a lot of that into the 2004/5 famine.”1305
According to the Action Aid report the famine in 2001/2002 had such devastating effects
compared to the famine in 1991/1992 because economic liberalisation had removed the strong
involvement of Admarc. Ten years earlier Admarc had depots in the remote rural
communities and made food available at affordable prices. To move from a system where
Admarc controlled input supply as well as food prices to full liberalisation where food
supplies and prices were suddenly determined by the market proved difficult.1306 “We have a
liberalized market system and liberalizing a market in a country where market structures are
not developed you are only promoting exploitation. The government is currently not very
willing to intervene into the market. We strongly feel it should come in more strongly.”1307
This is, however, the view of one member organisation and there is no consensus on the way
forward. Donors, who have a strong voice in policy decisions, government, and civil society
disagree about the appropriate role of the state in addressing vulnerability and food insecurity.
Admarc’s social role, in particular, was subject to widespread debate at the time of my field
research. Nevertheless, Admarc continued to be popular among the general public and no
politician was willing to go too far with the privatisation, and thereby risk popular support.1308
In addition to the changed role for Admarc came the fact that the so called Starter Pack
programme, distributing packs of fertilizers and seed to nearly three million farmers, had been
scaled down beneficiaries in 2000/01, and had not been replaced by any other large-scale food
security programme.1309 The above factors need to be taken into account when analysing the
role of the right to food as a potential avenue for addressing food insecurity and famine.
3.4.3 Giving meaning to the right to food in Malawi: A word on process
In the following, I analyse the draft bill produced within the Right to Food Project, The Food
and Nutrition Security Bill. Drafting a bill on the right to food is a process of giving meaning
and content to a human rights norm and as such the process is interesting. Who is taking part
in the process, and who is excluded? In what context does the ‘definition’ take place?1310
The bill analysed here is the draft of 2006. It has been updated later on but I have not had
access to these versions. The first bill was drafted by a lawyer without consulting any
‘stakeholders’. What was done in order to increase ‘participation’ was that member
organisations took up the right to food and the draft bill during awareness raising meetings1311
but there were no wider consultations.1312 “Normally when we are drafting a law it will
1305
Interview No. 30 with donor, Malawi 2006. FSD2727.
1306
Devereux, “State of Disaster”, supra note 122, at 2. ADMARC has a history dating back to 1971. Before
being partly privatised in the late 1980s, ADMARC was the sole trader of maize. Any farmer could sell beans,
tobacco, and other produce to ADMARC if no one else would buy it at a set price. It also held a monopoly on
inputs such as fertilizers, seeds, and farm implements. See Sahley et al, “The Good Governance Dimensions of
Food Security in Malawi”, supra note 1286, at 46.
1307
Interview No. 20 with NGO, Malawi 2006. FSD2727. The contradiction between the Government’s human
rights responsibilities and the impossibility of intervening in pricing because of the liberalised market system
was also noted in Interview No. 1 with Malawi Human Rights Commission. FSD2727.
1308
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 29 and
49. See also Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 59.
1309
Levy, “Introduction”, supra note 126, at 8.
1310
See Ife, Human Rights from Below, supra note 8, at 134.
1311
Interview No. 15 with Church and Society, Malawi 2006; Interview No. 19 with NGO, Malawi 2006.
FSD2727.
1312
This was confirmed in the two group interviews with members of Church and Society in Mulanje. FSD2727.
198
require this participation phase before we even begin to draft the law. That was not the case
with this one.”1313 This meant only a very small group of people (all men) were included in
the drafting and thereby also the meaning-giving process: the lawyer who drafted the bill and
the leader of Church and Society who initiated and advised him. Because of this ‘top-down’
approach there were member organisations that felt the draft should be reviewed before the
issue was be taken any further. “It was drafted by a lawyer. We feel it need to be reviewed, it
need to have the mandate of the people.”1314
Lack of participation and dialogue in the process of giving meaning to human rights is
characteristic of a legal approach to human rights. Human rights are accepted as being defined
in legal documents, which are, for obvious reasons, drafted by small groups of people, usually
politicians, diplomats, academics, opinion leaders, and a few human rights activists.1315 As
can be recalled, in this way human rights is a discourse of the powerful about the
powerless,1316 thereby contributing to a discourse of domination and disempowerment.
A drafting process that would have included wide consultations could possibly have
contributed to a public dialogue about the meaning, source, and authority of human rights and
the right to food as well as forms and strategies for claiming them. However, this opportunity
to discuss the relevance and meaning of the right to food for the lived reality of the people in
Malawi was not taken by the organisations.
The drafting took place within the framework of Malawi’s regional and international
commitments to the right to food.1317 From my analysis of the content of draft bill it seems
that the ICESCR has been the main source of inspiration rather than the African Charter on
Human and People’s Rights. The draft bill uses the same kind of ‘progressive realisation’
language as the ICESCR and that it is not used in the African Charter and also not in Section
30 of the Malawi Constitution.
The context is which the drafting process in Malawi took place had transnational origins.
Church and Society took part in the process of drafting the Voluntary Guidelines to support
the progressive realisation of the right to adequate food in the context of national food
security (the ‘Right to Food Guidelines’),1318 led by the Food and Agriculture Organisation
based in Rome (i.e., by a global elite). There is little resemblance between the ‘Right to Food
Guidelines’ and the draft bill with regard to the content, other than that the definition of ‘food
security’ is the same. The impulse to legislate on the right to food in Malawi originated from
the discussions and negotiations on the international guidelines,1319 and that in itself is
relevant when trying to understand the process and what impact it has had on human rights
discourse in Malawi. When a small group of people, associated with an international and
national elite, speaking a specialised, often technical language1320 come together to draft/give
1313
Interview No. 16 with Draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1314
Interview No. 20 with NGO, Malawi 2006. FSD2727.
1315
Ife, Human Rights from Below, supra note 8, at 126.
1316
Ife, Human Rights from Below, supra note 8, at 126. Emphasis in original. Merry also reminds us of the
urgency to include women in the making of the human rights framework so that we can move toward disrupting
the patriarchal shape of that framework. Merry, Human Rights and Gender Violence, supra note 287, at 231.
1317
Malawi ratified the African Charter on Human and Peoples’ Rights 17 Nov 1989 and the International
Covenant on Economic, Social and Cultural Rights 22 Dec 1993.
1318
Adopted by the 127th Session of the FAO Council, November 2004.
1319
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1320
See Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley:
University of California Press, 2005) at xviii; Robert Archer, “The Strengths or Different Traditions: What Can
Be Gained and What Might Be Lost by Combining Rights and Development?”, 4 Sur International Journal on
Human Rights Law (2006) 81-89, at 86.
199
meaning to the right to food this inevitably has an impact on how human rights are perceived
and applied by less powerful groups.
This can be seen against the process of ‘transnationalisation of law’ that takes place as a
consequence of the emergence of a set of new legal actors. International and local NGOs,
social movements, and the UN system all play a role in law making processes, and the draft
bill on the right to food in Malawi is an example of this. Randeria points out that this is as
such not new for post-colonial states that never had absolute monopoly over law
production.1321 National legal landscapes have always been complex and shaped by diverse
external influences, but the growing dominance of international law, the transnationalisation
of state law and the direct involvement of multilateral institutions, donors and transnational
NGOs have all contributed to a new “supra-national dimension of legal pluralism”.1322 The
draft bill is certainly an example of national civil society, with transnational links,
contributing to legal pluralism.
3.4.4 From freedoms to entitlements?
As previously mentioned, the human rights rhetoric and discourse in Malawi has emphasised
freedoms rather than entitlements, civil and political rights rather than socioeconomic rights.
The concept of entitlements is not used, as such, in e.g. the ICESCR. It was developed by
Amartya Sen in the late 1970s, and became widely known after the publication of his book
Poverty and famines (1981) and in his later book Hunger and entitlements (1988). The central
message was that focussing on food supply is not enough – what matters is who has command
over these supplies. Food and other goods and services over which a person has command, are
his or her ‘entitlements’.1323 The concept of entitlements is thereby, according to Kracht and
Huq, closely related to that of legal ownership rights.1324 Eide, who also bases his writing on
entitlements on Sen’s scholarship, writes that “entitlements exist when one party effectively
controls productive resources or can insist that another delivers goods, services, or
protections, and that parties will act to reinforce (or at least not hinder) their delivery.”1325
Kent views entitlements as “nationalized versions” of global human rights and the obligations
that come with them.1326
I use the concept here because I think it describes the idea of positive state obligations and it
helps in avoiding simplistic assumptions based on ideas that fulfilment of the right to food for
all can be achieved by mere distribution of food resources. While the positive obligation to
fulfil the right to food does occasionally (and in the case of Malawi, probably more often than
not) involve food distribution, or other forms of social protection such as cash distribution, it
1321
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 152.
1322
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 151. “By pointing to the coexistence of
a plurality of legal orders within one single political unit, […] legal pluralism interrogates the centrality of state-
made law and its exclusive claim to the normative ordering of social life.” Ibid., at 151.
1323
Amartya Sen, Hunger and Entitlement (Finland: World Institute for Development Economics Research,
United Nations University, 1988) at 8.
1324
Uwe Kracht and Muzammel Huq, “Realizing the Right to Food and Nutrition through Public and Private
Action”, 21 Food Policy (1996) 73-82, at 74.
1325
Asbjørn Eide, “The Right to an Adequate Standard of Living Including the right to Food” in A. Eide, C.
Krause & A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook, Second Revised Edition (Dordrecht:
Martinus Nijhoff Publishers, 2001) 133-148, at 139.
1326
Kent, Freedom from Want, supra note 83, at 91.
200
is necessary also to improve the prevailing “legal, political and economic arrangements”1327
with the aim of strengthening poor people’s entitlements.1328
The Malawian human rights discourse has, in addition to a strong emphasis on ‘freedoms’,
also focused on the responsibilities of the individual that are said to come with human rights.
(This is in line with the African Charter on Human and People’s Rights that departs from
other human rights instruments and imposes duties on individuals. These duties are owed to
other individuals, the family, society, and also the state.)1329 Only recently has there been a
shift to a stronger focus on obligations by duty-bearers. “At first it was everybody for
themselves: you have rights, it’s up to you. Now we are saying you have rights but certain
people have obligations to ensure you enjoy your rights to the outmost.”1330 Within the Oxfam
rights-based approach the actors used this kind of language of rights and obligations.
Obligations, especially of a legal nature, were also important in the Right to Food Project and
the draft bill. Overall, the main purpose of the draft bill was to make the right to food
justiciable,1331 that is, enforceable through legal and para-legal institutions. Due to limited
access to formal legal forums, the organisations behind the draft bill aimed at a system where
the right to food could be claimed outside the court system: “We hope the right can be
claimed not only in formal magistrate courts and the like. Once we have the law we are going
to call on the government machinery to be more responsible and the claiming might be
through group actions, advocacy and lobbying, more of that sort rather than maybe an
individual going to court.”1332
The draft bill established a the Malawi Food and Nutrition Authority. The Authority would be
competent to receive complaints. According to the draft bill, individuals and groups, or
organisations representing such groups, may bring complaints and petitions before the
Authority and it may find a violation of the right to food and nutrition security.
Draft Section 50: “Any person guilty of an offence under this Act or regulations made
hereunder for which no penalty has been prescribed shall be liable to a fine of K750,000 or to
imprisonment of 5 years.” The explanation behind this rather exceptional approach may be
found in the fact that the Malawi Constitution allows its Bill of Rights to apply in the private
sphere.1333 Private actors are bound by human rights provisions and when courts are resolving
private disputes, they have the duty to consider human rights, including socio-economic
rights.1334 This practice is reflected in the fact that the Malawi Office of the Ombudsman is
competent to investigate complaints in both public and private spheres, which has led to a
massive volume of cases received.1335
It seems that the draft bill would establish personal criminal responsibility for offences under
the act, rather than ordering the government to remedy the situation through taking positive
measures as has been the case when finding a violation of the right to food in India and South
1327
Used in Jean Drèze and Amartya Sen, Hunger and Public Action (Oxford: Clearndon Press, 1989) at 9.
1328
Kracht and Huq, “Realizing the Right to Food and Nutrition through Public and Private Action”, supra note
1324, at 75.
1329
Articles 27-29 of the Charter define duties of individuals. See also Mutua, “Standard Setting in Human
Rights”, supra note 296, at 577.
1330
Interview No. 19 with NGO, Malawi 2006. The challenge is that duty-bearers have not recognized that rights
imply that they have certain obligations. Interview No. 29 with Malawi resource Centre on Human Rights.
FSD2727.
1331
Interview Nos. 15, 16, 19 and 20, Malawi 2006. FSD2727.
1332
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1333
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 235.
1334
Ibid., at 235.
1335
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi, supra note 1029, at 50-51.
201
Africa.1336 As we have seen in part II, in India the right to food litigation has lead to the
Supreme Court converting eight nutrition-related schemes of free food distribution, subsidised
grain for the poorest of the poor, midday meals, family benefit schemes etc into legal
entitlements, making it obligatory for the government to implement them.1337
The Authority was given a broad mandate in the draft bill. Draft Section 36 stated:
The Authority shall be competent in every respect to protect and promote the right
to food and nutrition security in Malawi in the broadest sense possible and to
investigate violations of such right on its own motion or upon complaints received
from any person, class of person or body.1338 (Emphasis added.)
This kind of ‘violations language’ was not used throughout the draft bill. Progressive
realisation of “the right to food and nutrition security” (draft Section 3(1)) was advocated. In
this context, the right to food was linked to the Millennium Development Goals. The Draft
Section 3(4) stated that “The Government shall progressively eliminate hunger by improving
wages and incomes of people in order that by 2015 there shall be no person earning less than
$1 a day.” Also the notions of “taking steps” and “maximum available resources” (familiar
from the ICESCR) were used in the draft bill. There was even a direct reference to
“international covenants”:
The government shall take steps, legislative, economic, technical or otherwise to
the maximum of its available resources with a view to achieving progressively the
full realization of people’s rights enshrined in the international covenants related
to the right to food and nutrition security to which Malawi is a party. (Sec. 3(6))
Draft Section 3 took very little consideration of specific national conditions in Malawi, even
to the extent that the international poverty line was used instead of the national poverty line.
Furthermore, the wording of the draft bill seemed to lower the level of positive state
1336
The Indian Supreme Court ordered in the 1985 case of Kishnan Pattnayak and Others v State of Orissa that
State government try to solve the problems of poverty rather than just focusing on immediate disaster relief. In a
South African case of 2003 (Kutumela v Member of the Executive Committee for Social Services, Culture, Arts
and Sport in the North West Province) the North West provincial government was ordered to, inter alia, plan a
programme to ensure the effective implementation of the Social Relief and Distress Grant. See Sibonile Khoza
(ed.), Socio-Economic Rights in South Africa (South Africa: Community Law Centre, Second Edition, 2007)
328-329.
1337
Interim Orders of the Supreme Court, 28 November 2001. Available at
http://www.righttofoodindia.org/orders/interimorders.html, visited 15 December 2011. See Basudeb Guha-
Khasnobis and S. Vivek, “The Rights-Based Approach to Development: Lessons from the Right to Food
Movement in India”, in B. Guha-Khasnobis, S. S. Acharya & B. Davis (eds), Food Insecurity, Vulnerability and
Human Rights Failure (Hampshire: Palgrave Macmillan, 2007) 308-327, at 310. See also Muralidhar, “India”,
supra note 677, at 102-123.
1338
This mandate is very similar to that of the Malawi Human Rights Commission, which was established under
Chapter XI of the Constitution as a national human rights institution, starting its functions after the Human
Rights Commission Act of 1998. Act No. 27 of 1998, The Malawi Gazette Supplement, 11 August 1998,
reprinted in Kamal Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices: National
Experiences throughout the World (The Hauge: Kluwer Law International, 2000) 540-550. In 2004 a total of
1,136 complaints relating to human rights violations were handled by the Commission. Twenty two (22) cases
concerned the right to development and economic activity. Most of the cases have not been concluded. “Annual
Report of the Malawi Human Rights Commission for the Year 2004”, at 1. Available at
http://malawihumanrightscommission.org/docs/2004_MHRC_AnnualReport_.pdf, visited 15 December 2011.
There have been attempts to make the Human Rights Commission as accessible as possible in that exhaustion of
other remedies is not a requirement for lodging a complaint and free legal aid can be applied for in cases before
the Human Rights Commission. E.M. Singnini, “Malawi’s Human Rights Commission” in Kamal Hossain et al.
(eds.), Human Rights Commissions and Ombudsman Offices: National Experiences throughout the World (The
Hauge: Kluwer Law International, 2000) 527-532, at 531.
202
obligations from the standard set in the Section 30 of the Constitution.1339 Draft Sections 4
and 5, on the other hand, tackles specific problems experienced in Malawi, i.e., disasters and
food aid. The problem of politicisation of food aid was dealt with in draft Section 5:
(1) No person, entity or political party shall use food aid for political purposes.
(2) No person shall with hold food aid from any vulnerable person for any reason
based on political opinion, tribe, region, marital status, disability, or other status,
nor shall food aid be used to induce change of political affiliation.
The intention was to criminalise politicisation of food aid or inputs. In draft Section 6,
prohibited acts and omissions were defined. The question is whether this kind of violations
and criminalisation discourse can underline and strengthen the accountability of duty-bearers,
thereby also underlining the obligations side of human rights.
Considering that more than 85 percent of all economically active Malawians were employed
in agriculture at the time o drafting,1340 developing the agricultural sector is a key issue for
food security. The draft bill, however, failed to link the right to food to broader issues of
livelihoods or to government services in agriculture (for instance in the form of extension
workers).
There are some question marks concerning what kind of state the member organisations are
advancing in their advocacy through advocating the draft bill. There seems to be some
hesitation even within the Right to Food Project as to what should be the social role of the
government.
I don’t know how many people at the grassroots level who would think in terms
of the social responsibilities of the Government. Our Constitution seems to be
focused on economic liberalization, that people should be empowered so that they
can stand on their own. Instead of the government giving direct services, some of
us think this is just complementing or helping the government out but we need to
get to a day when everyone stands for themselves. What the government should
do is to provide the working environment that is conducive.1341
While this is not in direct opposition to the thinking on entitlements, this kind of rhetoric
mainly suits the current market driven development agenda, and it can hardly be seen as an
effort to advocate for a more ambitious agenda for social justice. Instead of creating a strong
social role for the government in this area, along the lines of strengthening poor people’s
entitlements, the draft bill promoted “broad based economic development that is conducive to
the promotion and sustainability of food and nutrition security” (3(7)).
One can also argue that since the drafting of the bill had taken place in a non-participatory
manner and the content includes no rights-based services (something that we have seen made
sense to community members in the SHSLP), this is what Baxi calls an ethic of human rights
that insists on what communities and individuals ought to desire.1342 The drafters had decided
1339
Section 30(2) of the Constitution reads: “The State shall take all necessary measures for the realization of the
right to development. Such measures shall include, amongst other things, equality of opportunity for all in their
access to basic resources, education, health services, food, shelter, employment and infrastructure.”
1340
This figure is from 2003. See Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”,
supra note 1286, at 7.
1341
Interview No. 19 with NGO, Malawi 2006. A similar statement was made in Interview No. 1 with Malawi
Human Rights Commission: “It has been understood as if that right [the right to food] is only about the State
creating an environment where you can fend for yourself, not that the State has a direct responsibility to take
care of you.” FSD2727.
1342
Baxi, The Future of Human Rights, supra note 358, at 7.
203
what communities and individuals ought to desire, and that did not include services in
agriculture.
3.4.5 Policies as politics
Putting the Right to Food Project into a larger picture of how human rights discourse
traditionally has dealt with issues of inequality, there is a clear global tendency to favour legal
solutions to social problems. Gready and Ensor warn against what they call the ‘legal reflex’
within human rights discourse, i.e., the assumption that “resort to law is the most effective and
perhaps only form of protection and remedy”. Establishing legal recognition of human rights
can at worst become an end in itself, and this again can lead to a reduction in creativity with
regard to activism. These arguments do not deny the importance of the law, instead they seek
to give equal importance to political and social processes in securing human rights.1343 Gready
and Ensor point out that an engagement with rights potentially stimulates a political
transformation. This challenges the established, often hierarchical structures within society,
and is therefore never a simple process.1344 Furthermore, Hugo Slim observes that most
importantly, rights-talk has the ability to politicise development1345 issues such as food
insecurity. However, Ratna Kapur points out that it is important to be aware how law can
transform the “political discourse of human rights and depoliticize it”; law as a discourse
tends to obscure power relations and decontextualise political claims.1346 In other words,
depolitisation also takes place in human rights discourse, and according to Kapur this occurs
because of the strong role given to law and legal solutions.
The Right to Food Project is not an apolitical approach although there are differences in
emphasis, especially concerning what social role the state should play, among the
organisations taking part in the project. Clearly, law plays a political role in transforming
society. Moreover, research from neighbouring Zambia shows that legal practitioners have
“become intimately engaged with the state, and in doing so has become a form of politics.”1347
The situation is similar in Malawi and the legal profession contributed immensely to the
political transformation of the early 1990s.1348
Some organisations within the Right to Food Taskforce seemed to have committed
themselves to advocacy so that the Government makes better policies,1349 indicating a
commitment to using rights as form of political pressure. This approach was, however, not
visible in the draft bill.
The main policy issue that was discussed during my field research visit was the on-going
fertilizer input subsidy programme that was a government driven, yearly initiative to support
small scale subsistence farmers since 2005. While the draft bill promoted “expanded access to
agricultural inputs” (3(9)), subsidies as such were only mentioned in connection to vulnerable
groups. Therefore, it is unclear whether fertilizer or other input subsidies were promoted in
1343
Gready and Ensor, “Introduction”, supra note 70, at 9. This is also discussed in Sano, “Does Human Rights-
Based Development Make a Difference?”, supra note 55, at 66.
1344
Gready and Ensor, “Introduction”, supra note 70, at 23.
1345
Slim, “A Response to Peter Uvin”, supra note 57, at 3.
1346
Kapur, “Revisioning the Role of Law”, supra note 382, at 110-111.
1347
Jeremy Gould, “Strong Bar, Weak State? Lawyers, Liberalism and State Formation in Zambia”, 37
Development and Change (2006) 921-941, at 937.
1348
See in Clement Ng’ong’ola, “Judicial Mediation in Electoral Politics in Malawi”, in Harri Englund (ed.), A
Democracy of Chameleons: Politics and Culture in the New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002)
62-86, at 85.
1349
Interview No 22 with civil society network, Malawi 2006. FSD2727.
204
the draft as a broad-base form of government intervention to support the right to food. In this
context we should keep in mind that widespread application of fertilizers on the soils of
Malawi is not environmentally sustainable – and the Committee on Economic, Social and
Cultural Rights has made clear that sustainability is an aspect that needs to be taken into
account in efforts to realise the right to food. “Sustainability” incorporates the notion of long-
term availability and accessibility so that food is accessible for both present and future
generations.1350 In any case, the silence on this issue on behalf of the Right to Food Taskforce
reveals a reluctance to make use of rights as an argument on this highly politicised issue.
Moreover, the Taskforce has not carried out thorough analysis of which policies contribute to
food insecurity and hunger and which policies reduce the level of food insecurity and hunger.
In 2006, Church and Society hosted an international fact-finding mission coordinated by two
international NGOs, Rights & Democracy and FIAN International. The findings and
recommendations concerning the right to food in Malawi can be read in the report The Human
Right to Food in Malawi. “In order to fulfill its human rights obligations, a State party to the
ICESCR must develop and implement policies and programs aimed specifically at the
progressive realization of the rights contained therein, including the right to adequate
food.”1351 The report does not, however, give any guidance as to how this could be carried out
in practice. Furthermore, there is no analysis of the elements of the right to food (accessibility,
availability, acceptability)1352 nor is there any analysis of the obstacles to why the rights-
holders fail to demand the right to food and why the duty-bearers fail to meet their
obligations. There is simply no situation analysis with reference to the right to food; instead
the report gives a general overview of the food security situation in the country. The
relationship between the fact-finding mission and the Right to Food Project is unclear; the
report does refer to the project and also recommends the government to “adopt the Human
Right to Food Bill” as proposed by the National Right to Food Taskforce but it does not
indicate what benefits this would bring.1353
The draft bill only made reference to policies and programmes on a very general level:
The Government shall put in place mechanisms, budgetary allocations, safety net
programmes, credit programmes and schemes, wage policies and legislation, land
tenure policies and legislation to ensure the accelerated full realization of the right
to food and nutrition security for all without adverse discrimination. (3(3))
Therefore, the drafters of the bill seemed to represent the view that legislation should only
give certain guidance to the duty-bearer on what steps to take, not stipulate particular policies.
The question is if the bill implies that the schemes mentioned in 3(3) should be rights-based,
and if so, what does it mean? E.g. a credit programme does not automatically advance the
right to food, nor is it self-evident that safety net programmes are rights-based services. There
are more than 150 food security projects coordinated by the Ministry of Agriculture,1354 but it
is unclear if the right to food has a role in this context. In the draft bill it was assumed that all
programmes that claim to support food security are beneficial as to the right to food.
Around 2006, there were plans in Malawi to move away from safety nets (mainly food
assistance) to social protection in the form of, inter alia, unconditional cash transfers to the
1350
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 7.
1351
Samdup, “The Human Right to Food in Malawi”, supra note 145, at 45.
1352
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
1353
Samdup, “The Human Right to Food in Malawi”, supra note 145, “recommendations”.
1354
Field diary, notes from discussion with Adviser in Technical Secretariat, 12 December 2006.
205
poorest of the poor.1355 In Malawi thus far social protection policy had been characterised by a
range of ad hoc, small scale and short term interventions rather than a coherent and sustained
set of government driven social protection measures.1356 This kind of welfare approach to
assist the part of the population that is unable, for reasons beyond their control, to either
produce food or buy food, would be worth investigating from a right to food perspective.
Food-based safety net programmes to save lives following e.g. drought dominate policy
response at present but we should keep in mind that these interventions are neither predicable
nor comprehensive. The ideal form of social protection would be guaranteed, predictable
transfers to all chronically vulnerable groups – and this remains a distant ambition,1357 but the
right to food movement in Malawi could integrate the growing interest for social protection
with efforts to strengthen legal protection of the right to food. In other southern African
countries rights-oriented civil society actors have shown signs of assuming an activist role by
advocating for basic social protection as a right.1358 However, the draft bill only included one
short and general reference to social protection1359 and according to Church and Society there
has been no serious discussions about minimum social protection as a right.1360 Furthermore,
the question of the new land policy was not addressed in the draft bill or by the Right to Food
Project despite its potentially considerable effects on the right to food.1361
3.4.6 What is the role of human rights principles in the draft bill and the Right to Food
Project?
In the following I discuss non-discrimination, participation, accountability and empowerment
and compare their role and meaning in the draft bill and the Right to Food Project to the role
and meaning of these principles in the two other projects.
The principle of non-discrimination has a surprisingly weak position in the draft bill. In the
first substantive section of the draft the old-fashioned notion of “himself and his family”
(compare with the ICESCR) is used: “Every person has the right to food and nutrition security
including a standard of living adequate for the health of himself and his family”. This could
be interpreted as discriminatory against female-headed households. Moreover, there is no
general discrimination clause in the draft bill. Instead, with-holding of food aid “from any
vulnerable person for any reason based on political opinion, tribe, region, marital status,
disability, or other status,” is prohibited in draft Section 5(2). This means that the focus was
on upholding non-discrimination in targeting of food aid. Special consideration of so called
vulnerable groups, on the other hand, was emphasised. According to the definition given in
Section 2 “Vulnerable groups means and includes children, pregnant women, lactating
mothers, illiterate persons, persons with disabilities, the poor, the widowed, the orphans, the
1355
Interview No. 24 Department of Poverty and Disaster Management Affairs, Malawi 2006; Interview No. 3
with donor, Malawi 2006. FSD2727. ‘Social protection’ can include safety nets but is broader in scope and more
diverse in practice. See Stephen Devereux, “Social Protection Mechanisms in Southern Africa”, a report by
Regional Hunger and Vulnerability Programme, June 2006, at 1. Available at http://www.ids.ac.uk/files/ RHVP_
Review_of_SP_Report.pdf, visited 10 May 2012.
1356
Devereux, “Social Protection Mechanisms in Southern Africa”, supra note 1355, at 7.
1357
Ibid., at 2.
1358
Ibid., at 5. See also Karen Tibbo, “The Role of INGOs in the New Social Protection Agenda in Africa”, a
report by Regional Hunger and Vulnerability Programme, February 2008. Available at http://www.wahenga.org/
node/1023, visited 10 May 2012.
1359
Section 3(11): “Government shall progressively increase annual budgetary allocation for the programmes in
para. 8 as part of social protection for vulnerable groups.” 3(8) focus on programmes to strengthen dietary
diversity rather than safety-net programmes.
1360
E-mail interview with Church and Society, August 2012.
1361
On this issue, see De Schutter, “The Emerging Human Right to Land”, supra note 553, at 323-324.
206
elderly;” This means that the majority of Malawi’s population is part of a ‘vulnerable group’
(especially since ‘the poor’ is being defined as vulnerable). It is not surprising that there was
no proper analysis of the relationship between discrimination and vulnerability in the draft
itself, but it is surprising that these ‘vulnerable groups’ are included in the bill without any
kind of background analysis.
In all of the three cases analysed, the principle of equality and non-discrimination has focused
on targeting processes, i.e., the process of identifying needs and responding to these needs.
None of the projects used discrimination and marginalisation as a lens for analysis. The
focus was not on finding out who are most marginalised or vulnerable as to discrimination
and exclusion, but on who are vulnerable to food insecurity or malnourishment or resource
constraints in general.
The principle of participation was even weaker than that of non-discrimination: there was no
mention of opportunities for public participation in policy formulation concerning food
security issues in the draft bill. Furthermore, lack of participation in the drafting process itself
was an obvious defeat of ‘human rights principles’. The Right to Food Project was in this
regard a sad example of the non-participatory nature of human rights work that aims at
changing laws and practices from above, with limited or no input from below.
As we have seen in the previous parts of this chapter, accountability was given quite different
meaning in the two approaches to food security analysed so far. What was common to the
JEFAP food assistance programme and the Oxfam rights-based livelihoods programme in
Shire Highlands was that accountability expressed the concern for checks and oversight,
monitoring and institutional constraints on the exercise of power.1362 While the WFP and its
partner NGOs had a managerial and apolitical approach to accountability Oxfam and its
partners had an advocacy and political approach, in which accountability was linked to
obligations on the part of government institutions to deliver certain services. What is
interesting in the Oxfam programme was that accountability was linked to obligations
(characteristic of human rights discourse) but without making explicit reference to legal
provisions and without using the normative framework as an avenue for accountability. The
legal approach in the Right to Food Project, for its part, had a strong focus on achieving
increased accountability through providing stronger legal protection of the right to food.
(Naturally, there can be a close connection between action to achieve political accountability
and action to achieve legal accountability. Advocacy that perhaps starts as demands for
political accountability may later lead to misuse of power being dealt with in a court.)
As we have seen in the analysis of the JEFAP food assistance programme, there were certain
accountability gaps in food distribution. Beneficiaries were left alone with possible
complaints about mismanagement without avenues for holding duty-bearers to account. What
complicated the picture even further is that food assistance operations were largely in the
hands of donors, international agencies, and NGOs, delegated to local structures, i.e. not the
government that has ratified the human rights treaties. The question is if a right to food act
would fill the accountability gap experienced by the beneficiary who did not receive the bag
of maize as she expected?
There is no doubt that one main aim of the organisations behind the draft bill was to increase
the level of legal accountability for violations of the right to food, especially in food
assistance processes (thereby focussing more on the respect dimension of state obligations
and less on the protect and fulfil obligations). It is difficult to speculate about the possible
future usage of such a possibility: nobody knows if victims of violations were able to access
1362
Compare with Schedler, “Conceptualizing Accountability”, supra note 803, at 13.
207
legal advice and representation that is required for a successful case. It is also impossible to
predict if the act would lead to judicial activism around the right to food, and if that would
have beneficial outcomes in terms of remedies for violations. (Of course, it is natural to
expect that those organisations that have initiated the Food and Nutrition Security Bill would
also make use of it in a case where it was adopted.) However, it goes without saying that even
when accountability institutions are in place these may display variable outcomes for the
people suffering from food insecurity and hunger.1363
The way the draft bill appeared in 2006, suggested that cases would focus mostly on the
negative aspects of obligations under the right to food and less on the positive aspects of
taking steps to realise the right. However, since politicisation of food assistance was
widespread and contributed to the view that food assistance is a charity-based service (a
‘favour’)1364 it would be welcome if courts and other forums were to tackle this issue. It is
also clear that the drafters were aware of the limited access to justice that poor people face in
Malawi. The idea behind the Food and Nutrition Security Authority was actually to have an
institution that is easier to access than courts. “You want to provide for a mechanism, an
administrative mechanism within the law that ensures it can be enforced without necessarily
going to court. So you create that kind of authority that will be responsible, it’s responsible
for the implementation, for the monitoring to make sure it’s being complied with. It’s also a
kind of tribunal to settle disputes.”1365
The importance of empowerment was underlined by many of the member organisations in the
Taskforce on the Right to Food. The possible future usage of a right to food act would depend
on the empowerment of rights-holders. In this context we are speaking of rights-holders being
empowered to claim the right to food from duty-bearers, not of empowerment in general (or
capacity development in general as the term was interpreted in the JEFAP).
The context in which empowerment was raised in the Right to Food Project, however,
suggests that it was interpreted as the opposite to being ‘dependent’ and ‘relying on
handouts’: “The right to food was initially seen as a means to getting handouts but it’s not
only handouts, it’s empowerment.”1366 In Malawi handouts are usually synonymous with food
assistance. (And there was no effort to make these ‘handouts’ into a rights-based service.)
This view of a contradiction between empowerment and ‘handouts’ is prevalent in human
rights discourse and is not unique to the Right to Food Project. Even when the question
whether food assistance and other forms of direct assistance does indeed create ‘dependency’
has not been solved1367 with such arguments as “if you continue feeding them day after day,
they may lose the incentive to provide for themselves, and thus become disempowered,
weakened by the help”1368 are surprisingly common in literature on human rights. The
1363
On this issue in the context of the right to water, see Lyla Mehta, Unpacking Rights and Wrongs: Do Human
Rights Make a Difference? The Case of Water Rights in India and South Africa (Brighton: IDS Working Paper
260, November 2005). Available at http://www.drc-citizenship.org/system/assets/1052734463/original/
1052734463-mehta.2005-unpacking.pdf?1289493063, visited 10 May 2012.
1364
“So people are still used to, when they get services from the government, oh this is a favour, this government
is very considerate, they are concerning our plight, not our rights but our plight.” Interview No. 19 with NGO,
Malawi 2006. FSD2727.
1365
Interview No. 16 with draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1366
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1367
On the debate among scholars and organisation whether food aid creates ‘dependency’ see, e.g. FAO, The
State of Food and Agriculture 2006, supra note 1044, at 35; Lentz and Barret, “Food Aid and Dependency”
supra note 1076.
1368
Kent, Freedom from Want, supra note 83, at 121.
208
argument states that helping people to provide for themselves, or ‘teaching people how to
fish’, as the saying goes, is synonymous with empowering them.1369
However, one could also argue that empowerment is about rights-holders becoming aware
that, in their struggle to provide for themselves and their livelihoods, they have the right to
demand various means of support from the government (claiming needs as rights), and that
the government has to be accountable for implementing rights and services. When everything
else fails they have the right to demand temporary support in the form of food assistance or
cash transfer as social protection. Creating an empowerment agenda around these issues
would mean broadening the agenda for social justice and strengthening the entitlement aspect
of human rights discourse.
According to Englund, this was, however, not what the human rights movement in Malawi
was doing in the first half of 2000. Englund argues that the notion of ‘responsibility’ had
come to complement the emphasis on rights and freedoms in human rights discourse in
Malawi.1370 It seemed human rights NGOs (during civic education sessions in communities)
had put a lot of responsibility on the side of the rights-holder in fulfilling human rights.
Sometimes the concept of empowerment had been linked to encouraging self-reliance and
strengthening of the capacity of community members to manage their own affairs and to work
harder for their ‘development’, and this was the case also in the Right to Food Project.
For instance in the element of food security you’d empower somebody by helping
them how they can on their own manage their agricultural life, their needs and the
like. When you just come and donate bags, and say this is your food, that is not
empowerment. But even education that you can give them, and other basic needs
that actually propel them to a better future, that is empowerment, through
education. Once you have showed somebody you should be able to go back and
see the people do the same things but now on their own without your assistance,
that is empowerment.1371
How empowering is the right to food when combined with market logic and emphasis on
everyone fending for oneself and being responsible for one’s own rights (self-reliance as a
form of empowerment)? If no strong social role for the state is advocated, the question is what
added value the right to food has. When too much responsibility is put on the weaker party,
i.e. the rights-holder, there is a risk that empowerment becomes disempowerment in the face
of the seemingly impossible task to realise one’s own right to food with minimum outside
support.
3.4.7 Concluding remarks
Human rights discourse in Malawi is not stable or static and naturally the heightened interest
in socioeconomic rights and the right to food contributes to its change. The entitlement
dimension of the draft bill is, however, surprisingly weak, much weaker than international
interpretations of the right to food, such as that given by the Committee on ESCR in General
Comment No. 12. The fact that the draft bill has, as of 2012, not been adopted may indicate
that its content did not resonate with human rights discourse dominating at the time of
drafting and advocating for its adoption.
1369
Kent, Freedom from Want, supra note 83, at 121.
1370
Englund, Prisoners of Freedom, supra note 414, at 67. This was confirmed in Interview No. 1 with Malawi
Human Rights Commission; Interview No. 32 with CARE Malawi and Interview No. 24 Department of Poverty
and Disaster Management Affairs; Interview No. 5 with Oxfam; Group Interview No. 2. FSD2727.
1371
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
209
Having an act on the right to food that would promote clearly defined duties for the state in
the area of food assistance, social protection, as well as services relevant for agriculture would
advance a human rights-based approach to food security. It would strengthen as well the
position of the rights-holders in their struggle to demand services as a matter of fulfilling their
human right to food instead of as favours that may or may not be handed out. However, the
actors in the Right to Food Taskforce seem to underline a perceived contradiction between
empowerment and ‘handouts’. Advocating for making these ‘handouts’ into rights-based
services that could be claimed from accountable duty-bearers was not clearly spelled out.
Instead the draft suggested individual criminalisation of the politicisation of food assistance or
inputs. Focus was thereby on the respect dimension of the obligations coming with the right to
food, while the protect and fulfil dimensions remained weak.
To conclude I will try to relate the legal approach to food security to my assumptions about
the possible added value of human rights in food security efforts. My first assumption was
that a human rights language changes the mindset of the actors in development, underlining
the legally binding nature of addressing food insecurity, and contributing to empowerment of
rights-holders. It seems obvious that an act of legislation on the right to food would contribute
to underlining the legally binding nature of addressing food insecurity. Duty-bearers in
Malawi need to be reminded that addressing food insecurity is a matter of fulfilling human
rights obligations, and food assistance (or social protection schemes) should be rights-based
services. Therefore, legislation on the right to food is valuable as long as it serves the end goal
that the right to adequate food is realised for all Malawians.1372 Legislation is, however, not an
end in itself but instead it is merely a stepping stone in a social and political struggle for
increased equality. There is a risk that if this is forgotten the Taskforce on the Right to Food
will resort to the ‘legal reflex’ that is common in human rights discourse.1373 Having a
national law on the right to food does not automatically further the realisation of this right.
The content of the draft bill was not very transformative as it failed to put forth a clear and
strong obligation for the state to take positive measures to realise the right to food. It can be
questioned whether the draft challenged the status quo in a way that would potentially
strengthen the position of the rights-holder. Naturally, the idea to create a law on the right to
food is as such transformative (legislation can be a step towards social and political
transformation), but the problem with the draft was the vague nature of state obligations and
the unclear role of the duty-bearers. From the perspective of the position of the rights-holders
it is important that, first of all, there are available services, and second, that these are
guaranteed; that there are long term and predictable rather than short term interventions based
on more or less arbitrary criteria.
With regard to the second part of my assumption about the value of human rights language,
that such language is empowering for the rights-holder, the question is whether a stronger
protection of the right to food can contribute to a new human rights discourse in Malawi, with
an emphasis on rights and obligation, entitlements and freedoms rather than one-sidedly on
freedoms. Due to the non-participatory nature of the Right to Food Project the empowerment
element was weak: drafting a bill on the right to food was not taken as a possibility to increase
dialogue on the meaning of the right to food.
1372
The Committee on Economic, Social and Cultural Rights states that “[t]he right to adequate food is realized
when every man, woman and child, alone or in community with others, has physical and economic access at all
times to adequate food or means for its procurement.” General Comment No. 12, (1999) on the right to adequate
food, supra note 577, para. 6.
1373
See Gready and Ensor, “Introduction”, supra note 70, at 9.
210
The idea behind the second assumption about human rights situation analysis was that when
such an analysis raises questions such as what actors should take measures towards
progressively realising the right to food, and what obstacles are hindering these steps from
being taken, focus should be on structural issues such as: policy, power and politics, action
and non-action by institutions, exclusion and marginalisation, as well as rights-holders’ lack
of possibilities to participate. In the Right to Food Project itself there had been no human
rights-based situation analysis outlining the pattern of rights and obligations, rights-holders
and duty-bearers or obstacles in the way of realising the right to food. Perhaps lack of analysis
as a preparation for drafting the Food and Nutrition Security bill was the reason why it failed
to address deeper structural causes of food insecurity and hunger (e.g. lack of land, inputs, and
agricultural services).
My third assumption proposed that human rights offer a platform from which to demand the
accountability of duty-bearers. If the Food and Nutrition Security bill is adopted Malawians
will have one more platform to hold duty-bearers accountable. At least there would be an
explicit avenue to demand legal accountability e.g. for misuse of food assistance and that
could prove to be useful for the effectiveness of these yearly programmes. However, it is
highly unrealistic to think that every Malawian would have to go to court (or another similar
forum) every time his right to food is violated, and therefore efforts to achieve increased legal
accountability need to be combined with broader advocacy efforts.
3.5 Conclusions and review of assumptions
Based on the analysis it is possible to develop a number of criteria for what is characteristic
of (1) the FFA programme within JEFAP (‘charity-based service’); (2) the sustainable
livelihoods programme SHSLP (‘rights-based approach’); and (3) the Right to Food project
(‘legal approach to food security’).
It can be said that food assistance is charity-based service addressing symptoms instead of
trying to change underlying structures that gave rise to hunger. In JEFAP symptoms were
addressed through service delivery that was in the hands of NGOs and local elites rather than
government structures. Although much effort was put into the targeting process and the
principle of non-discrimination and focus on the most vulnerable were given high priority,
there was a certain level of arbitrariness in the process where it was determined who was
chosen as a beneficiary and who was excluded. The food assistance service was not seen as a
matter of human rights, i.e., meeting an obligation by providing a mandatory service to rights-
holders who would have been selected based on clearly defined criteria. Instead the service
remained a charity, i.e., a favour that may or may not be provided to beneficiaries based on
more or less arbitrary criteria. The principles of ‘good development practice’ were taken
seriously, but in the JEFAP participation and accountability remained tools to increase
effectiveness in reaching the intended beneficiaries; instead of dealing with these principles as
a relationship between the government and its citizens. When trying to avoid the political
games of food aid, the development actors turned the programmes into a technical process,
thereby also sidestepping accountability as a democratic principle. Food assistance was a
technical operation where a service was being delivered by an international development
agency in partnership with NGOs, on behalf of the government, and through the support of
donors.
In the rights-based approach the role of duty-bearers was stronger. Everything that the
programme did was informed by the aim of supporting the capacity of the district level duty-
bearers to deliver rights and at the same time generating awareness of and demand for these
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rights among communities. In this context ‘rights’ meant services – and services were dealt
with as a rights issue (services seen as ‘just entitlements’). There was no clear link to the legal
framework to support the line of reasoning that services should be rights, which meant that
the express linkage to a legal rights framework was missing. Instead, there was a strong focus
on advocacy and efforts to mobilise rights-holders to demand services as a matter of rights
and to demand accountability of duty-bearers. Programme activities aimed at changing policy
and practice and there was a transformative element side by side with traditional service
delivery that tried to alleviate symptoms of, for example, drought. Rights language played an
important role in empowerment processes. The principles of accountability, participation and
non-discrimination were more than tools to be used at the programme level: they also
informed the ambitions to make societal level changes of how these principles are respected
in the relationship between rights-holders and duty-bearers. There was a difference between
charity-based and rights-based approaches in terms of working methods. RBA challenged the
status-quo by trying to achieve change at different levels, seeing equality and non-
discrimination, accountability, participation and empowerment at the level of society and not
only the project level.
Even though certain basic needs (related to freedom from hunger) were seen as rights in the
legal approach to food security, and my assumption was that this would have implications for
the working processes, the irony is that the Right to Food Project had not been very mindful
of so called human rights principles (with the exception of legal accountability). The draft
Food and Nutrition Bill was drafted by a lawyer with input from a very limited number of
stakeholders. Furthermore, within the draft bill the principles of non-discrimination and
participation were weak. (It is too early to judge if the proposed Food and Nutrition Act
would strengthen these principles in the relationship between the rights-holders and the duty-
bearers in the process of realising the right to food.) The programme represented an elite and
legalistic approach with limited or no involvement of people struggling to feed their families
through subsistence farming. Instead, there was strong focus on increasing legal
accountability of duty-bearers, especially for misuse of food assistance. The idea of creating a
law on the right to food is, as such, transformative (social transformation through legislation)
and when combined with advocacy efforts, an ambition to achieving structural change can be
seen. The content of the draft bill did, however, not provide for a strong social role for the
government as the ultimate duty-bearer of fulfilling the right to food.
In all three approaches, targeting was in principle based on needs, but it was only in the
rights-based approach that services were seen as a matter of fulfilling a rights agenda and
people started to claim needs as rights. It makes better sense to distinguish between a charity-
based and a (human) rights-based approach than between a needs-based and a (human) rights-
based approach. Needs do not disappear because the focus is placed on rights; needs continue
to play a role and this is not alien to human rights thinking. However, according to human
rights standards on economic and social rights certain (basic) needs should be entitlements
and fulfilling of these needs is seen as obligations rather than charity.
The charity-based and the legal approaches have more in common than one would think. The
draft bill on the right to food did not put forth rights-based services but focussed instead on
how to avoid abuse and corruption in the targeting process (focussing on individual
accountability and criminalisation). The view on empowerment as the opposite to hand-outs is
another example of similar ideas being upheld in both approaches.
What I call a legal approach to food security was a conventional human rights approach to
food security in the sense that ‘the right to food’ was accepted as being defined in legal
processes and forums. In the rights-based approach analysed, there was no clear link to human
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rights as defined in international norms and standards, nor in national legislation. The
approach taken by Oxfam and its partners resembled an actor-oriented approach to human
rights in development in that they allowed actors to give meaning to the concept of human
rights. The rights-based approach is a ‘development approach’ to human rights that in many
ways takes participation and empowerment to levels where human rights discourse has not
managed to go due to a non-inclusive agenda in the process of giving meaning to the human
rights concept itself.
Based on the assumptions made before the field research as to the value added by human
rights in development and food security efforts I can conclude and reformulate the
assumptions.
1) The first assumption was that human rights language changes the mindset of the actors in
development, underlining the legally binding nature of addressing food insecurity, and
contributing to empowerment of rights-holders. There is evidence that when actors in
development, both duty-bearers and rights-holders, become aware that food security and
services related to fulfilling it is a matter of rights instead of a ‘favour’ or charity, this does
change their mindset. However, the process of giving meaning to the human rights concept,
including the right to food, is essential to whether the human rights language is going to be
empowering for the rights-holders or not. Human rights language is often associated with an
elite, using top-down approaches, and there is often a fine line between empowerment and
disempowerment. All actors must be included in the processes and dialogues about what
human rights mean, everyone must ‘own’ the rights-language so that it makes sense in a lived
reality to use it.
2) The second assumption was that human rights-based situation analysis implies that a
whole range of new and different questions, which have a basis in the normative human rights
framework, are raised in a development context. There is evidence that thinking in terms of
rights and duties has led to actors raising new questions in the context of radio listening clubs
deciding which development problems to bring to the attention of service providers. These
questions are, however, not based in the normative human rights framework but instead based
on what actors themselves feel they are justly entitled to (an actor-oriented approach). In the
other two projects analysed no situation analysis had been carried out that was based on the
thinking of rights and duties, however, I do think the Right to Food Project would have
benefitted from such an analysis.
3) The third assumption was that human rights offer a platform from which to demand the
accountability of duty-bearers. There is evidence in my data that human rights offered such a
platform in the Shire Highlands programme on a political, or rhetoric level, but not on a legal
level. There was no analysis of how the existing legal framework could be used to demand
accountability, instead it was the act of identifying rights-holders and duty-bearers that was
key. Accountability was linked to obligation in the sense that citizens put pressure on
government representatives to deliver certain services that were seen to be part of a rights
agenda, but there was no link to legal provisions. In the Right to Food project increasing legal
accountability and broadening avenues for making legal and para-legal accountability claims
was a central aim behind drafting the bill on the right to food. However, the content of the
draft bill suggests that the negative side of the obligations under the human right to food
would probably be subject to legal claims rather than using the act to demand positive action
from duty-bearers in the area of livelihoods. The draft bill represented a rather limited agenda
for social justice.
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We can draw parallels to four dimensions in the ‘new accountability agenda’ advocated
within a human rights-based approach to development, as raised by Sano. Firstly, as there is
strong emphasis on the demands of the rights-holders and the obligations of the duty-bearers,
this implies “a more direct role for ordinary people and their associations in demanding
accountability from the authorities.”1374 This was certainly true for the Shire Highlands
programme, especially in the case of the radio listening clubs. So far the role of the rights-
holders has been limited within the Right to Food Project. The way the draft bill was
formulated in 2006 there was, however, potential to advance their role, especially through
associations, in legal accountability claims.
The second and third new dimension of the accountability agenda is “a broadening and
diversification of the areas within which accountability is demanded;” as well as “a growing
repertoire of methods that are established in order to make demands operative.”1375 We can
see examples of this both within the Shire Highlands programme and the Right to Food
Project. In the former, the main focus was on demanding accountability through putting
pressure on the duty-bearers using various avenues such as meetings and the radio to raise
claims, and in the latter the main focus was on achieving accountability through para-legal
means, i.e. not only court proceedings.
The fourth dimension raised by Sano is “a more ambitious agenda for social justice”,
presuming the existence of a stronger state than the neo-liberal state.1376 If demanding
services from government institutions as a matter of a rights issue can be seen as advancing a
more ambitious agenda for social justice, and I argue it can, this was true for the Shire
Highlands programme. With regard to the Right to Food Project there are some question
marks concerning what kind of state the member organisations are advancing in their
advocacy and through putting forth the draft bill. There seems to be some hesitation within
the Right to Food Project as to what should be the social role of the government.
1374
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 72.
1375
Ibid., at 72.
1376
Ibid.
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PART IV CONCLUDING DISCUSSION
This thesis has explored the role of human rights (as standards, as principles, as rhetoric) in
development policy and practice in general and food security in particular. It has explored
what, if any, transformative potential human rights have in these contexts, which often
involve struggles over power and resources needed for economic and social rights and
services. It has asked whether human rights can have a counter-hegemonic function in the
face of hegemonic development; and whether human rights create space for agency and
empowerment. In this pursuit, it has tried to reveal contradictions, paradoxes, and tensions in
how human rights are used to further transformation and ‘good change’.
In part II of the thesis the author has critically analysed concepts such as development, human
rights, human rights-based approaches to development and food security, and principles of
non-discrimination, accountability, participation and empowerment. The overall purpose of
part II was to give theoretical explanations as to how these concepts have been defined by
various actors in various contexts as well as answers to the general questions concerning the
transformative potential of human rights in development practice and food security posed in
part I. The conceptual analysis also helps to understand the role of these concepts in food
security in Malawi as well as to understand what difference human rights make as they enter
into development programmes and projects, what new elements are brought in, and what
value is added. The author wanted to understand the characteristics of the so called human
rights-based approaches to development cooperation, compared to ‘good development
practice’ and ‘legal approaches’.
*****
The transnational human rights community has used considerable resources to create an
international system of legal human rights standards and institutions responsible for the
monitoring of these standards. Whether this system is working or not was not the subject of
this thesis. However, it is relevant to notice that when human rights are institutionalised it
means they also become part of the power that upholds certain dominant structures – and for
transformation to take place the system of dominance, inter alia, authoritarianism, capitalism,
and patriarchy have to be challenged. As human rights are further integrated in development
efforts they often become part of the social engineering and institutionalisation in a top-down
manner. Human rights become tools of external quality control, a way of imposing
conditionalities. Whether this is ‘good’ or ‘bad’, and for whom, must be assessed in a specific
context. In general, this tendency does have implications for the potential to use human rights
in mobilisation and advocacy against arbitrary power and domination, thereby creating space
for agency.
We cannot assume that official human rights advancement automatically leads to progress and
success. This thesis has pointed out that lack of theories of change in studying human rights
forces researchers to be humble about the possible role of human rights in processes of
change. The theory that does exist, the so called ‘spiral theory’, define human rights narrowly
as ‘legal freedoms rights’. There is no theory of change concerning the role of human rights
defined more broadly. The thesis has identified the fact that studying grassroots women’s
groups, and the way they apply human rights discourse to achieve change in their lives, would
be a good case study to develop and test a hypotheses concerning the role of human rights as a
counter-hegemonic tool in struggles for social change.
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As regards the ‘spiral theory’, it is unclear what comes after the final stage of change, i.e.,
‘norm-consistent behaviour’. Can human rights be effectively used as a political and legal tool
by rights-holders to improve the conditions of their lives? A certain level of
institutionalisation and acceptance of human rights norms is only a first step and cannot as
such be equated with success or social change. It might be that human rights are foremost
used by domestic elites for hegemonic purposes, i.e., to exert social, cultural, ideological, or
economic influence. We can find examples of such usage of human rights in Malawi. In
Malawi human rights are very much part of an official discourse used by dominant groups.
Human rights are also guaranteed in the Constitution and monitored by courts and the Malawi
Human Rights Commission. However, as using legal avenues for redress is out of reach for
most Malawians a certain degree of institutionalization of human rights has little impact in
creating social change.
*****
In this thesis we have seen that human rights have played, and continue to play, diverse roles
in development policy and practice. An early attempt to integrate the two spheres of
development and human rights was the right to development, with debates in the UN going on
long before the adoption of the Declaration in 1986. The Southern states that pushed for the
adoption of the Declaration used human rights as arguments for global equity among states
and donor obligations but this never had the impact they had hoped for. Today various human
rights-based approaches have a stronger position in development policy and practice than the
right to development. Most Northern donors have chosen to integrate human rights into their
policies and practices through negative human rights conditionality and the demand for good
governance. As a way of giving support to the capacity to live up to the conditionalities put on
aid recipients, they are offered ‘positive support’ to democracy, human rights and governance.
What these strategies have in common is that the demand for rights comes as a measure of
outside quality control.
Reviewing how the concept of ‘development’ has been defined and what kind of development
is the aim in human rights-based strategies is revealing. In the right to development and
human rights-based approaches to development there are elements of people-centred human
development, with a strong role to be played by the state. In these approaches the objective of
‘development’ is the realisation of human rights as defined in treaties. Since human rights
discourse tends to avoid political questions, there is no clear position on economic systems
and the question about growth. There is no fundamental critique or questioning of the very
foundational (Western) idea of ‘development’ as constant growth or improvement; the human
rights-based model simply puts some limitations on what actions can be legitimized in the
name of development as well as offers ‘new’ principles, based in human rights norms, for the
development process. Human rights-based approaches to development, as defined in the
Common Understanding among UN agencies, or among donors, do not question hegemonic
development, which of course is not surprising.
In bottom-up (or ‘alternative’) development it is accepted that ‘development’ will always
mean very different things in different contexts and for different people. When the objective
of development is given (from above as stipulated in human rights instruments and by expert-
led institutions) there is less room for formulating people’s own visions of what kind of
development they might value. Rights talk has been popular also within the ‘alternative
development’ paradigm that puts emphasis on agency and from below action. It seems that the
way rights are used in this context resembles an actor-oriented approach (the definition is left
open) rather than a human rights-based approach that is linked to definitions given in
international human rights treaties.
216
All kinds of conditioned aid, human rights related or not, can be seen as deliberately trying to
impose your idea of change and thereby ‘development’ on the recipient of support. In
contrast, in support that respects the autonomy of the actors, the helpers help the actors to help
themselves. This can be through reducing obstacles or supplying resources to enable the
actors to do what they were already motivated to do. There is compatibility between this
approach and certain human rights values such as freedom of choice and autonomy. However,
this kind of ‘radical capacity building’ is difficult to use in a human rights-based approach
that aims at supporting capacity for pre-defined human rights-conforming development aims.
This thesis finds that the concept of ‘rights-based approaches’ can be more useful for creating
space for agency and empowerment than ‘human rights-based approaches’ that are strongly
linked to the international human rights regime. The first concept leaves more room for actors
to define development and rights in a political process; the international human rights regime
may serve as a source of inspiration but actors do not lock themselves into certain pre-
determined goals, defined in international human rights agreements.
*****
Human rights discourse is often an excluding and elitist discourse in the global South, not
least in Malawi. This study has argued that human rights discourse needs to be expanded and
opened up for a public political dialogue taking place at all levels of society rather than kept
as expert knowledge. While acknowledging the importance of the international legal human
rights framework this thesis wants to highlight that global movements for social justice have
challenged aspects of this system, thereby contributing to its evolution and reformulation.
Specific human rights have to be given content and meaning not only by legislators and courts
(‘from above’) but also by actors within social movements and community development
(‘from below’). Rights-based approaches to development can at best help in advancing a
localisation and politicisation process of human rights. Opportunities for agency are created
when the political space in which individuals and groups are able to claim their rights and
participate in decisions that affect their lives is expanded. In the process of formulating
development and food security-related human rights claims, the actors reshape and broaden
what is normally understood to be human rights. In Malawi we have seen actors taking the
human rights agenda into the area of services. This is an example of how rights-based
approaches challenge the traditional understanding of ‘human rights’.
An actor-oriented approach to human rights questions the position of experts as sole agents
in the process of meaning-giving; it contributes to rethinking and reframing human rights as
contextual and dynamic concepts, and thereby also gives human rights discourse a new
language. This is challenging and certainly not risk-free but is in the interest of diversity.
Diversity should not be seen as a virtue only when exercised within the limits the ‘liberal
paradigm’. There must be trust in the wisdom and change from below, seeing that there are
opportunities and challenges for change in all cultures and all situations. We should move
beyond blaming ‘culture’ for human rights violations and posing universal human rights
principles embodied in formal laws as the solution. Reality is far more complex. This study
finds that the most fruitful approach to the universal human rights debate is viewing ‘rights as
culture’ instead of ‘rights versus culture’ or ‘rights to culture’. The task of people doing
human rights-based development work is about assisting the process so that poor people’s
claims are heard, seen and reflected, and not one of imposing their idea of help, or change.
The task also includes putting some limits to self-direction so that everyone’s human rights
are respected.
217
Actors such as Oxfam, together with local groups, adopt new rights and reformulate existing
rights in a way that makes sense to the people they work with. Thereby they contribute to
giving meaning to human rights in a new way, challenging the dominant meaning given to
human rights. Radio listening clubs in Southern Malawi questioned the idea that human rights
need to be introduced by experts and created an alternative debate on injustice. At the same
time we have seen that Oxfam’s local partners and rights-holders tend to prioritise short-term
needs when setting agendas for development rather than striving for structural changes in
economic and social policies. However, if we take agency seriously, we must let actors
themselves speak about human rights and development – despite the risks – also when they
make decisions that are ‘wrong’ from the perspective of the human rights expert.
*****
In the chapter on food security and food rights we have seen that food security programmes
and food aid have been the development response to hunger while the human rights response
has been establishing a legal entitlement that in theory can be claimed from duty-bearers.
Despite the either/or thinking that has been characteristic of human rights discourse in the past
it seems that today UN-led experts have embraced the right to food as an individual, legally
enforceable entitlement while at the same time not avoiding putting the right to adequate food
into a political and economic context, calling for structural reforms such as land and
agricultural reform. Similarly, the right to food does, according to General Comment 12,
sometimes include a right to receive food assistance or other support. The State has the fulfil-
obligation to provide the right to food directly to victims of natural or other disasters.
Despite differences in emphasis, the two discourses of food security and the right to food are
closely related to each other, both underlining physical and economic access to food. ‘Food
security’ has evolved from a focus on supply and availability of food at a national level to
access to food on the household and individual level. Similarly, physical and economic access
to food has become a key factor in how the right to adequate food has come to be defined in
General Comment 12 of 1999. Before the adoption of the general comment, the normative
content of the right to food was less clear. Moreover, other efforts have been made to define
the right to food and envision the steps towards its realisation. In 2000, the Human Rights
Commission appointed a Special Rapportuer on the Right to Food and in 2002 the World
Food Summit called on the FAO council to establish an Intergovernmental Working Group to
elaborate a set of voluntary guidelines to support Member States’ efforts to achieve the
progressive realisation of the right to adequate food in the context of national food security.
These so called Right to Food Guidelines were adopted in 2004, and are said to be a human
rights-based practical tool addressed to all states.
The Guidelines are designed to clarify and help states in developing strategies, policies and
programmers which are rights-based. This means they should be based on legal obligations –
as the claimed added value of a human rights approach to food security lies in the emphasis of
addressing food insecurity as a matter of obligation, not benevolence. However, the Right to
Food Guidelines give very little attention to obligations and what is even more confusing is
that they fail to clarify the essential fulfil/provide dimension of the tripartite obligations used
in General Comment 12. States that want to establish and maintain safety nets or other
assistance, as part of their right to food strategies, for individuals who are unable to provide
for themselves, will not find guidance in the Guidelines. The Guidelines seldom link the right
to food to an obligation, and does not use the concepts of ‘rights-holders’ and ‘duty-bearers’;
concepts that were already introduced into the food security debates in the 1980s. For these
reasons, it remains unclear what exactly is the role of duty-bearer institutions, rights-holders,
218
and different stakeholders such as donor states and international agencies in strategies aiming
at progressive realization of the right to adequate food.
The process of giving meaning to the right to food continues and various actors influence it:
UN-led expert institutions based in Geneva and New York, NGOs and other civil society
actors that work locally as well as transnationally, and national courts on the national level.
The regional, India-based woman’s organisation PWESCR’s efforts to establish a right to
livelihoods in the international human rights system and the Right to Food Campaign in India
are examples of how civil society actors strive to contribute to giving meaning to food rights
in a way that makes sense to them and the people they work with. They urge for redefinition
and expansion of current legal interpretations of the right to food, calling for what they feel
are ‘just entitlements’. For the PWESCR and its partners the right to livelihoods makes better
sense in the lived reality of marginalised groups, especially women, they claim to represent.
Women produce 60-80 percent of the food in most developing countries (more than 80
percent of the food in Africa) – and yet they are disproportionately vulnerable to hunger and
receive only 7 percent of agricultural extension time and resources.1377 What the actors behind
the Right to Food Campaign in India as well as the Right to Livelihoods campaign at the
transnational level have in common is the ambition to link food rights to broader issues of
livelihoods, emphasising that a livelihoods perspective gives agency to rights-holders.
*****
Despite the fact that most agencies work with their own definition of a human rights-based
approach to development cooperation, there seems to be agreement on the core elements
defining it: this approaches works to strengthen the capacity of duty-bearers to respect, protect
and fulfil their human rights obligations; simultaneously, the rights-holders’ capacity to
demand and claim that their human rights are respected, protected and fulfilled is
strengthened; the aim of human rights-based development is human rights realisation and the
process of how this aim is reached is informed by human rights principles.
The problem is that it is not always clear what ‘human rights principles’ add to ‘good
development practice’, which also works to strengthen equality, accountability, participation
and empowerment.
From the review of how these principles are interpreted and applied in the human rights
discourse, in its conventional legal form, the development discourse and in the practices that
come into being as these two discourses meet, it is clear that a human rights perspective does
bring in a new dimension. However, it is less clear whether a focus on human rights and
human rights principles create space for empowerment and agency. There seems to be a
contradiction in the discourses linking human rights and development; as on the one hand it is
aimed at people becoming active agents rather than passive beneficiaries, while on the other
hand it does not fully allow these same people to be part of a discussion on the meaning of
concepts such as participation, empowerment, and human rights. Often the agenda has been
set by organisational priorities that again are informed by ready-made definitions given by
experts.
Change is a disorderly process, and it is clear that the role of human rights in these processes
can be static and disempowering or ‘alive’, claimed in the moment, and empowering. The
context and the process matter. The issues at stake are especially concerned with who sets the
agenda, who decides what issue to mobilise around, and what happens in the process of
translating people’s daily challenges into a human rights language.
1377
Halving Hunger: It can be done, supra note 549, at 5.
219
As a human rights principle, equality and non-discrimination should not remain on the project
or programme level but also have implications for advocacy and mobilisation efforts to
challenge structures that uphold inequality in society. In a similar way, when human rights
enter into development policies and practices, new accountability relationships and
frameworks emerge. There is stronger focus on the state-citizen relationship compared to the
donor-implementing agency accountability relationship that tends to dominate in ‘good
development discourse’. In human rights-based approaches to development, the relationship
between rights-holders and duty-bearers is at the heart of demanding accountability;
accountability is about making sense of rights and obligations. The act of identifying rights-
holders (and their entitlements) and corresponding duty-bearers (and their obligations)
potentially raise levels of accountability in the development process. Advocacy and
mobilisation around issues of lack of practical implementation of rights/services are important
aspects of the enforceability and responsiveness dimensions of accountability. In some
countries, judicial activism also plays an important role in these broader struggles for
accountability. In these struggles, accountability is not apolitical, even when resorting to a
court.
Accountability has in common with participation the fact that it strives to enable people to
actively draw on their civil and political rights in order to achieve something else, often their
economic, social and cultural rights. In this way, accountability and participation strive for a
broader change agenda. The aim is to increase participation in the relationship between people
as citizens and rights-holders and the different power holders such as government institutions,
donors, and corporations that make policy decisions that have great impact on poor peoples’
lives. In human rights-based approaches the aim would be participation in societal decision-
making; the participatory relationships include the relationship between the government and
its citizens, not only the ‘beneficiary’ and the project. This is deeply political and fits uneasily
within organisations that try to maintain that they do apolitical human rights awareness
raising. Transformative participation must consider ways of challenging broader structures,
and this requires political strategies.
In the matter of participation, there is, however, a tendency both within the development and
human rights communities that, when experts are involved, they think they know what is best
for ‘the poor’ and participation becomes consultation or superficial involvement in activities.
Both accountability and participation can be defined narrowly as a way to improve
development outcomes and increase effectiveness.
Another key challenge is that human rights-based approaches which are linked to human
rights norms and standards tend to have pre-defined goals. This fits uneasily with
transformative development, as it goes against the very idea of participation and allowing the
‘beneficiaries’ to be in control, making obvious their own intentions for development. In an
actor-oriented approach to human rights this does not have to be a problem: actors are free to
give meaning to ‘human rights’ instead of relying on pre-defined concepts, unless actors
produce demands that violate other actors’ human rights.
*****
In the empirical section, we have seen that the development policy and practice has focused
on responding to immediate needs during the repeated food crises in Malawi while the human
rights community has mainly focused on freedoms rather than entitlements. The human rights
work has been characterised by talk rather than action. Civic education has been the main
mode of ‘sensitising’ the Malawian public to issues such as human rights and democracy. In
220
civic education, participants are expected to take ‘human rights’ as given concepts and
therefore there has been very little dialogue about the meaning and value of human rights.
The projects in Malawi analysed in this thesis use the human rights concept in different ways.
Oxfam and its partners in the SHSLP operated with a rather loose definition of human rights,
where there was room for the local actors to give meaning to the concept, in a way that
resembles an actor-oriented perspective on human rights while the Right to Food Project
applied an elite, from above approach to human rights with limited or non-existent
participation in the definition process. The latter approach used a legal approach, accepting
human rights to be those rights that are defined in legal documents while the former approach
saw human rights as cultural practice.
My empirical data supports the conclusions reached in part II. The way that non-
discrimination, accountability, participation and empowerment were used in the charity-based
approach, rights-based approach and legal approaches indicate that it is in the rights-based
approach that human rights in general and these principles in particular have the greatest
transformative potential. The strong focus on claiming needs as rights in the rights-based
approach is a considerable shift in human rights discourse in Malawi, which has previously
focused on rights as freedoms rather than as entitlements. Having such a strong focus on the
responsibility of the duty-bearer is also a change from a discourse that has emphasised the
responsibility of the rights-holder. There was, however, no strong link to the legal framework
to support the line of reasoning that services are rights; ‘rights’ were rather dealt with as ‘just
entitlements’. It is thereby possible to put the approach into the conceptual framework of an
actor-oriented approach to rights-based development: the understanding of ‘rights’ were
shaped through actual struggles informed by people’s own understandings of just
entitlements.
In the analysis of the FFA programme, (representing a ‘charity-based approach’)
participation, empowerment and accountability remained tools to increase effectiveness in
reaching the intended beneficiaries; instead of viewing these principles as a something that
should govern the relationship between the government and its citizens. There was no
questioning of the status quo. Avoiding the political games of food aid meant that the
influential development actors also avoided hunger as a political problem.
The right to food, or human rights law in general, had few implications for the way the FFA
project was implemented in Malawi. The notable exception was that the right of non-
discrimination and focus on the most vulnerable people in theory had a strong role in the
selection of beneficiaries, meaning that only the neediest people should receive food and that
there should be no discrimination in the targeting process. (In practice the targeting process
had its problems of course.) This can partly be seen as the donors’ way of trying to guarantee
that food was not misused for political purposes, and that targeting was indeed based on
needs. In a way this was sort of ‘human rights conditionality’.
In all of the three cases analysed the principle of equality and non-discrimination focused on
targeting processes, i.e., the process of identifying needs and responding to these needs. None
of the projects used discrimination and marginalisation as a lens for analysis. Focus was not
on finding out who is most marginalised or vulnerable to discrimination and exclusion, but on
who is vulnerable to food insecurity or malnourishment or resource constraints in general.
The principle of accountability was in the rights-based approach used as a basis to put
pressure on government institutions to comply with promises that were made during meetings
between service providers and community members. This line of reasoning is definitely a step
away from the managerial approach to accountability that was characteristic of the charity-
221
based approach. While the WFP and its partner NGOs in the charity-based approach had a
managerial and apolitical approach to accountability Oxfam and its partners in the rights-
based approach had an advocacy and political approach, in which accountability was linked to
obligations on the part of government institutions to deliver certain services. What is
interesting in the Oxfam programme was that accountability was linked to obligations
(characteristic of a human rights discourse) but without making explicit reference to legal
provisions and without using the normative framework as an avenue for accountability. The
legal approach in the Right to Food Project, for its part, had a strong focus on achieving
increased accountability through providing stronger legal protection of the right to food. The
main aim of the organisations behind the draft bill was to increase the level of legal
accountability for violations of the right to food, especially in food assistance processes. The
entitlement dimension of the draft bill was, however, surprisingly weak. The content of the
draft bill was not very transformative as it failed to put forth a clear and strong obligation for
the state to take positive measures to realise the right to food. It can be questioned whether the
draft challenged the status quo in a way that would potentially strengthen the position of the
rights-holder.
In the rights-based approach there was strong emphasis on particularly women’s participation
(a groups that traditionally has been outside of decision-making structures) in political
structures and formal or informal decision-making. This indicates that participation had a
broader meaning and agenda behind it than was the case in the food assistance programme.
Women and men did not participate merely as ‘beneficiaries’ but also as citizens and rights-
holders. In the legal approach, the principle of participation was weak: there was no mention
of opportunities for public participation in policy formulation concerning food security issues
in the draft bill created by the project. Furthermore, lack of participation in the drafting
process itself was an obvious failure of ‘human rights principles’.
In the rights-based approach, Oxfam and its partners were working to create a culture of
human rights where rights-holders would be able to claim needs as rights and where duty-
bearers would be clear that they have an obligation to respond. Empowerment was in this case
a process that leads these people to perceive themselves as able and entitled to make claims
and demand accountability.
The importance of empowerment was underlined in the legal approach. In this context we are
speaking of rights-holders being empowered to claim the right to food from duty-bearers, not
of empowerment in general (or general ‘capacity development’ as the term was interpreted in
the charity-based approach). However, due to the non-participatory nature of the project the
empowerment element was non-existent: drafting a bill on the right to food was not taken as a
possibility to increase dialogue on the meaning of the right to food. The context in which
empowerment was raised in the Right to Food Project, moreover, suggests that it was
interpreted as the opposite to being ‘dependent’ and ‘relying on handouts’. In Malawi
handouts are usually synonymous with food assistance in some form. (And there was no effort
to make these ‘handouts’ into a rights-based service.)
*****
This study finds that human rights are useful in shifting the attention of development policy
and practice to obligations, accountability and the ‘do no harm’ principle. A human rights-
based situation analysis can, moreover, contribute to raising new questions that contribute to
analysing structural challenges and the relationship between rights-holders and duty-bearers.
However, when human rights are conventionally defined as rights guaranteed in international
agreements they tend to serve as outside quality control in a way that serves the interests of
222
hegemonic development. In order for human rights to play a role in counter-hegemonic
struggles in social resistance, creating space for agency and empowerment, they need to be
open to public dialogue. An actor-oriented approach to human rights in development may
contribute to reshaping and diversifying human rights discourse.
223
SVENSK SAMMANFATTNING
Avhandlingen är en analys av den roll som mänskliga rättigheter spelar i
utvecklingssamarbete i allmänhet och tre matsäkerhetsprojekt i Malawi i synnerhet.
Författaren undersöker huruvida mänskliga rättigheter kan bidra till samhälleliga
förändringsprocesser. Förändring skapas av individer och grupper (aktörer) med en vision för
det samhälle som de vill leva i. Den teoretiska utgångspunkten är att individer och grupper
inte endast formas av sin värld utan också har makt att förändra den. Undersökningen har en
diskursiv syn på mänskliga rättigheter; rättigheter ses som sociala konstruktioner skapade av
människor, konstruktioner som förändras i takt med att aktörerna ger dem ny mening.
Avhandlingen frågar huruvida mänskliga rättigheter, när de integreras i utvecklingssamarbete,
kan skapa utrymme för egenmakt hos lokala aktörer. Är det möjligt för mänskliga rättigheter
att utgöra en anti-hegemonisk strategi – då utgångspunkten är att ’utveckling’ har kommit att
få en hegemonisk position? Genom en analys av hur ’utveckling’ har definierats i
människorättsbaserade strategier samt i diskursen kring rätten till utveckling finner författaren
att mänskliga rättigheter snarare minskar utrymmet för aktörers egenmakt: målet för
utveckling ges uppifrån, via människorättskonventioner. Inom alternativa utvecklingsteorier
accepteras det att målet för och innehållet i ’utveckling’ alltid varierar. Mänskliga rättigheter
har kommit att utgöra yttre kvalitetskrav och villkorsklausuler vilket påverkar deras
möjligheter att skapa utrymme för att ifrågasätta dominerande strukturer.
Författaren ser möjligheter i ett aktörsperspektiv på mänskliga rättigheter där definitionen
lämnas öppen. ’Rättigheter’ definieras genom strävanden att få dem respekterade och
förverkligade. Aktörernas egen uppfattning om berättigade anspråk påverkar vilken
innebörden blir i enskilda sammanhang. När aktörernas egenmakt är utgångspunkten kan
dominerande ekonomiska, politiska, sociala och kulturella strukturer ifrågasättas.
Vad gäller människorättsbaserade utvecklingsstrategiers mervärde finner författaren att de
riktar uppmärksamheten mot olika aktörers skyldigheter att förverkliga fattigas ekonomiska
och sociala behov samt vikten av att mänskliga rättigheter inte får kränkas genom
utvecklingspolitiska beslut. En utvecklingspolitisk analys som utgår från mänskliga rättigheter
kan leda till att nya frågor lyfts fram: vem har skyldigheter, vem har rättigheter, och varför
förverkligas inte dessa? Fokus flyttas till hur politiska, ekonomiska och juridiska strukturer
kan förändras så att de främjar mänskliga rättigheter, samt till olika aktörers ansvar.
Författaren använder empiriskt material från Malawi för att visa vilken roll mänskliga
rättigheter och så kallade människorättsprinciper såsom icke-diskriminering och ansvarighet
spelar inom tre projekt: (1) ett mathjälpsprojekt som syftar till att stärka lokala tillgångar; (2)
ett rättighetsbaserat projekt med fokus på att stärka småskaligt jordbruk och andra strategier
för livsuppehälle; samt (3) ett juridiskt projekt med målet att skapa en lag som skyddar rätten
till föda. Analysen kommer fram till att det rättighetsbaserade projektet i den mittersta
kategorin strävade efter den mest djupgående samhälleliga förändringen.
Människorättsprinciperna ansvarighet och deltagande handlade inte endast om verksamheten
inom projektet utan man strävade efter att stärka dessa principer också mellan medborgare
och myndigheter. Rättigheter – som ett sätt att tala, tänka och handla – inte som abstrakta
juridiska normer, påverkade de lokala aktörernas sätt att kräva bl.a. tjänster av lokala
myndigheter. Teoretiskt kan man säga att projektet representerar ett aktörsperspektiv på
mänskliga rättigheter där aktörernas egna uppfattningar om vad de är berättigade till samt
224
krav på myndigheters ansvar formade vilken betydelse rättigheter kom att få. Till skillnad från
det juridiska projektet spelade expertkunskap en mindre roll.
225
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Evaluation Report, The Malawi Human Rights Resource Centre, prepared by South Consulting for The Danish
Centre for Human Rights (Copenhagen: The Danish Centre for Human Rights, 2000).
Evaluation of General Budget Support 1994-2004: Malawi Country Report, May 2006. Available at
http://www.idd.bham.ac.uk/general-budget-support/PDFS-OECDDAC/ mal.pdf, accurate as of 8 March
2009.
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi (Copenhagen, Danish Centre for
Human Rights, 2000).
Lawson, Max, “Oxfam Mulanje Livelihood Security Programme: Institutionalising Participation for Sustainable
Livelihoods, Programme Model and Lessons Learnt 1987-2000”. (Report is with the author.)
Press
Chinsinga, Blessings, “Can Subsidies Last in Malawi”, in The Africa Report, 17 July 2012. Available at
http://www.theafricareport.com/index.php/soapbox/can-subsidies-last-in-malawi-501815522.html, visited 20
August 2012.
IPS Inter Press Service, “Bolivia: ‘Living Well’ in Harmony with the Environment” by Franz Chávez, 2010.
Available at http://ipsnews.net/news.asp?idnews=51125, visited 8 May 2012.
244
The New York Times, “Ending Famine, Simply by Ignoring Experts”, 2 December 2007. Available at
http://www.nytimes.com/2007/12/02/world/africa/ 02malawi.html? scp=1&sq=Ending+Famine&st=nyt.,
visited 8 May 2012.
Treaties
1966 International Covenant on Civil and Political Rights (adopted on 16 December 1966 and entered into
force on 23 March 1976) 6 ILM 368 (1967).
1966 International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966 and
entered into force on 3 January 1976) 6 ILM 360 (1976).
1981 The Convention on the Elimination on All Forms of Discrimination against Women (adopted on 18
December 1979 and entered into force on 3 September 1981). 10 ILM 33 (1980).
1981 African Charter on Human and Peoples’ Rights (adopted on 27 July 1981 and entered into force on 21
October 1986) 21 I.L.M. 59 (1982).
1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Protocol of San Salvador), (adopted on 17 November 1988, entered into force on 16
November 1999) OAS Treaty Series No. 69.
1989 Convention on the Rights of the Child (adopted on 20 November 1989 and entered into force 2
September 1990), 28 ILM 1456 (1989).
2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, (adopted on
10 December 2008), GA resolution A/RES/63/117 (2008).
Declarations
Universal Declaration of Human Rights (adopted 10 December 1948), G.A. res. 217A(III), UN. Doc. A/810 at
71 (1948).
Vienna Declaration and Programme of Action of 1993, Adopted at World Conference on Human Rights in
Vienna, 1993, UN. Doc. A/CONF.157/23
Beijing Declaration and Platform for Action, adopted by The Forth World Conference on Women, September
1995.
UN Millennium Declaration, General Assembly Resolution 55/2, 18 September 2000.
Paris Declaration on Aid Effectiveness, 2005.
UN Declaration on the Rights of Indigenous Peoples, Adopted by the Human Rights Council on 29 June 2006.
National legal and policy material, and surveys
India
Case of People’s Union for Civil Liberties v. Union of India (2001).
Interim Orders of the Supreme Court, 28 November 2001, Available at
http://www.righttofoodindia.org/orders/interimorders.html,visited 15 December 2011.
Malawi
Constitution of the Republic of Malawi, 1994, adopted 17 May 1995.
Human Rights Commission Act of 1998. Act No. 27 of 1998, The Malawi Gazette Supplement, 11 August 1998.
Chakufwa Tom Chihana v. Republic, MSCA Criminal Appeal no. 9 of 1993.
Gwanda Chakuamba & Others v. The Attorney General & Others, M.S.C.A. Civil Appeal no. 20 of 2000.
Food Security Policy, produced by Ministry of Agriculture and Food Security, Malawi, August 2006.
Government of the Republic of Malawi, Malawi National Land Policy, January 2002.
Malawi Agriculture Policy Framework, Logical Framework for Agriculture Sector Policy Documents, May
2006.
Republic of Malawi, National Statistical Office, Integrated Household Survey 2004-2005, October 2005.
245
Republic of Malawi, National Statistical Office, Integrated Household Survey 2010-2011, September 2012.
Available at http://www.nso.malawi.net/images/stories/ data_on_ line/economics/ihs/IHS3/IHS3_Report.pdf,
visited 19 September 2012.
Report of the Law Commission on the Review of Land-Related Laws, 9 April 2010.
Malawi Human Rights Commission
Annual Report of the Malawi Human Rights Commission for the Year 2004. Available at
http://malawihumanrightscommission.org/docs/2004_MHRC_AnnualReport_.pdf, visited 15 December
2011.
The Malawi Human Rights Commission Bulletin Mfulu, of July 2006, with focus on economic, social and
cultural rights. Available at http://www.malawihumanrights commission.org/docs/mfulu_july2006.pdf,
visited 15 December 2011.
The Malawi Human Rights Commission Bulletin Mfulu, “Time is ripe to get rid of harmful cultural practices”, of
March 2006. Available at http://www.malawi humanrightscommission.org/docs/mfulu_march2006.pdf,
visited 15 December 2011.
The Malawi Human Rights Commission Bulletin Mfulu, of July 2006. Available at
http://www.malawihumanrightscommission.org/docs/mfulu_july2006.pdf, visited 15 December 2011.
Interviews (archived at Finnish Social Science data Archive under FSD2727)
Joint Emergency Food Aid Programme (JEFAP)
Interview No. 4 with World Food Programme (9 November, in Lilongwe, male).
Interview No. 18 with World Food Programme (24 November, in Blantyre, female).
Interview No. 2 with Ministry of Agriculture and Food Security (8 November, in Lilongwe, female).
Interview No. 21 with Department of Poverty and Disaster Management Affairs (4 December in Lilongwe, one
woman and one man).
Interview No. 24 with Department of Poverty and Disaster Management Affairs (6 December in Lilongwe,
male).
Interview No. 3 with donor (23 November in Lilongwe, female).
Interview No. 26 with donor (8 December in Lilongwe, male).
Interview No. 30 with donor (12 December in Lilongwe, male).
Interview No. 27 with local NGO, member of JEFAP (8 December in Lilongwe, male).
Interview No. 28 with NGO, partner of JEFAP consortium (11 December in Lilongwe, female).
Interview No. 33 with NGO, partner of JEFAP consortium (13 December in Lilongwe, male).
Shire Highland Sustainable Livelihoods Programme
Interview No. 5 with Oxfam (13 November in Blantyre, male).
Interview No. 6 with Oxfam (13 November in Mulanje, male).
Interview No. 7 with Oxfam (14 November in Mulanje, male).
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community Development
in Mulanje District (14 November in Mulanje, one woman, two men).
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje (16 November in Mulanje, male).
Interview No. 14 with Tea, Coffee and Macadamia Workers Union (16 November in Mulanje, female).
Interview No. 10 with Development Broadcasting Unit (15 November in Thyolo, one man, one woman).
Interview No. 11 with Community Based Educators (16 November in Mulanje, two men, one woman).
Interview No. 12 with Malawi Carer (16 November in Mulanje, male).
Interview No. 17 with Women and Law in Southern Africa (22 November in Blantyre, female).
246
Group interview No. 1 with rights-holders: village headman, representatives of the Village Development
Committee, the Village Rights Committee (14 November in Mulanje district).
Group interview No. 2 with rights-holders: representatives of the Village Development Committee, the Village
Rights Committee, the Radio Listening Club and village heads (15 November in Thyolo district).
Right to Food Project
Interview No. 15 with Church and Society – CCAP, Blantyre Synod (20 November in Blantyre, male).
Interview No. 16 with Draftsperson of the Food and Nutrition Security Bill (21 November in Blantyre, male).
Interview No. 19 with NGO (24 November in Blantyre, male).
Interview No. 20 with NGO (1 December in Lilongwe, male).
Interview No. 22 with civil society network (4 December in Lilongwe, male).
Interview No. 23 with Ministry of Agriculture and Food Security (5 December in Lilongwe, male).
Interview No. 31 with FAO Malawi (12 December in Lilongwe, male).
Group interview No. 3 with male members of Church and Society in Mulanje District (23 November).
Group interview No. 4 with female members of Church and Society in Mulanje District (23 November).
E-mail interview with Church and Society, August 2012.
Other interviews
Interview No. 1 with Malawi Human Rights Commission (6 November in Lilongwe, male).
Interview No. 25 with Ministry of Lands, Physical Planning and Surveys (7 December in Lilongwe, male).
Interview No. 34 with Special Law Commission for Land Reform, Malawi Law Commission (13 December in
Lilongwe, male).
Interview No. 29 with Malawi Resource Centre for Human Rights (11 December in Lilongwe, male).
Interview No. 32 with CARE Malawi (13 December in Lilongwe, male).
Interview No. 35 with international NGO (15 December in Lilongwe, female).
247
Alessandra Sarelin
Alessandra Sarelin | Exploring the Role and Transformative Potential of Human Rights in Development Practice and Food Security: A Case Study from Malawi | 2012
Exploring the Role
and Transformative
Potential of Human
Rights in Development Alessandra Sarelin
Practice and Food
Security: A Case Study Exploring the Role and Transformative
from Malawi Potential of Human Rights in Development
A study in International Law Practice and Food Security:
This thesis investigates the interplay between
human rights and development. It explores the A Case Study from Malawi
role of human rights (as standards, as principles, as
rhetoric) and their transformative potential in terms
of challenging the status quo in favour of margina-
lised rights-holders.
The study contains an analysis of the role of human
rights in three food-related interventions in Malawi UFULU WOKHALA
representing different approaches to development
and food security: (1) a charity-based approach); (2)
NDI CHAKUDYA
a rights-based approach); (3) a legal human rights
approach.
9 789517 656641
Åbo Akademi University Press | ISBN 978-951-765-664-1
Alessandra Sarelin
Alessandra Sarelin | Exploring the Role and Transformative Potential of Human Rights in Development Practice and Food Security: A Case Study from Malawi | 2012
Exploring the Role
and Transformative
Potential of Human
Rights in Development Alessandra Sarelin
Practice and Food
Security: A Case Study Exploring the Role and Transformative
from Malawi Potential of Human Rights in Development
A study in International Law Practice and Food Security:
This thesis investigates the interplay between
human rights and development. It explores the A Case Study from Malawi
role of human rights (as standards, as principles, as
rhetoric) and their transformative potential in terms
of challenging the status quo in favour of margina-
lised rights-holders.
The study contains an analysis of the role of human
rights in three food-related interventions in Malawi UFULU WOKHALA
representing different approaches to development
and food security: (1) a charity-based approach); (2)
NDI CHAKUDYA
a rights-based approach); (3) a legal human rights
approach.
9 789517 656641
Åbo Akademi University Press | ISBN 978-951-765-664-1
Alessandra Sarelin (born Lundström)
(born1976)
- M.Pol.Sc. (2003, Åbo Akademi University)
Åbo Akademi University Press
Tavastgatan 13, FI-20500 Åbo, Finland
Tel. +358 (0)2 215 3478
E-mail: forlaget@abo.fi
Sales and distribution:
Åbo Akademi University Library
Domkyrkogatan 2–4, FI-20500 Åbo, Finland
Tel. +358 (0)2 -215 4190
E-mail: publikationer@abo.fi
EXPLORING THE ROLE AND TRANSFORMATIVE POTENTIAL OF
HUMAN RIGHTS IN DEVELOPMENT PRACTICE AND FOOD SECURITY
Exploring the Role and Transformative
Potential of Human Rights in
Development Practice and Food Security
A Case Study from Malawi
Alessandra Sarelin
Åbo Akademis förlag | Åbo Akademi University Press
Åbo, Finland, 2012
CIP Cataloguing in Publication
Sarelin, Alessandra.
Exploring the role and transformative
potential of human rights in develop-
ment practice and food security : a
case study from Malawi / Alessandra
Sarelin. - Åbo : Åbo Akademi
University Press, 2012.
Diss.: Åbo Akademi University.
ISBN 978-951-765-664-1
ISBN 978-951-765-664-1
ISBN 978-951-765-665-8 (digital)
Painosalama Oy
Åbo 2012
“The whales do not sing because they have an answer, they sing because they have a song”
~ Gregory Colbert
CONTENTS
ACKNOWLEDGMENTS ....................................................................................................... v
ABBRIVIATIONS .................................................................................................................. vi
PART I RESEARCH QUESTIONS, CONTEXT, AND METHODOLOGY
1.1 Theoretical and methodological starting points .................................................................. 1
1.2 Research questions.............................................................................................................. 4
1.3 Literature on the ‘added value’ of human rights-based approaches to development ......... 7
1.4 Purpose and assumptions .................................................................................................. 12
1.5 The food security situation in Malawi .............................................................................. 14
1.6 Data and method ............................................................................................................... 19
1.6.1 Research strategy: Analysis of three approaches ................................................ 19
1.6.2 Data collection: Semi-structured individual interviews and group interviews ... 22
1.6.3 Ethical issues ....................................................................................................... 27
1.6.4 Analysis of interview data ................................................................................... 28
1.6.5 The question of validity in analysis of qualitative data ....................................... 30
1.6.6 Summary.............................................................................................................. 32
1.7 Thesis outline .................................................................................................................... 32
PART II CONCEPTUAL ANALYSIS
2.1 Review of the meanings attached to ‘development’ ......................................................... 34
2.1.1 Why ‘development’? ........................................................................................... 34
2.1.2 The economic growth and human development schools ..................................... 35
2.1.3 Defining development and poverty in human rights approaches ........................ 37
2.1.4 Alternative development models and empowerment .......................................... 42
2.1.6 Concluding remarks............................................................................................. 46
2.2 Giving meaning to ‘human rights’, agency, and change in human rights discourse ........ 47
2.2.1 Introduction ......................................................................................................... 47
2.2.2 Historic overview of the human rights movement .............................................. 48
2.2.3 A review of the meanings attached to the human rights concept: Moving
beyond human rights as defined by the ‘powerful for the powerless’ ................ 51
2.2.4 Human rights and agency .................................................................................... 60
2.2.5 The political element of human rights ................................................................. 62
2.2.6 Human rights and legalization ............................................................................. 64
2.2.7 Human rights law and change (contesting the status quo) .................................. 65
2.2.8 The question of universality, relativism, particularity and context ..................... 69
2.2.9 Individual rights and collective rights ................................................................. 74
2.2.10 Indivisible and hierarchical human rights ........................................................... 76
2.2.11 Concluding remarks............................................................................................. 79
2.3 Food rights, food security, and livelihoods ...................................................................... 81
2.3.1 Who are the poor and hungry? ............................................................................ 81
2.3.2 The poor as experts on their own development ................................................... 83
2.3.3 Integration of food security and the right to food................................................ 84
ii
2.3.4 The right to food defined internationally, regionally and nationally................... 92
2.3.5 Concluding remarks........................................................................................... 102
2.4 The role and meaning of ‘human rights principles’ in development practice ................ 103
2.4.1 Defining human rights-based approaches to development ................................ 103
2.4.2 Five principles as key elements of human rights approaches to development
cooperation ........................................................................................................ 107
2.4.3 Express linkage to human rights norms and standards: Using human rights
law as a framework for analysis ........................................................................ 109
2.4.4 Equality and non-discrimination ....................................................................... 112
2.4.5 Accountability ................................................................................................... 117
2.4.6 Participation ....................................................................................................... 127
2.4.7 Empowerment.................................................................................................... 135
2.4.8 Concluding remarks on human rights principles ............................................... 146
PART III THE ROLE OF HUMAN RIGHTS IN FOOD SECURITY EFFORTS IN
MALAWI: CHARITY-BASED, RIGHTS-BASED AND LEGAL
APPROACHES
3.1 Human rights discourses in Malawi: Giving meaning to ‘human rights’ ....................... 148
3.1.1 Second liberation: Commitment to a multiparty democracy, human rights,
and a market economy ....................................................................................... 148
3.1.2 ‘Freedom’ discourse .......................................................................................... 150
3.1.3 Local reactions to official human rights discourses .......................................... 153
3.1.4 Civic education .................................................................................................. 154
3.1.5 The right to food in the legal framework of Malawi ......................................... 156
3.1.6 Concluding remarks........................................................................................... 158
3.2 Food assistance: A charity-based service ....................................................................... 158
3.2.1 Introduction ....................................................................................................... 159
3.2.2 Food aid as part of the right to food .................................................................. 160
3.2.3 The new food aid agenda: No free food ............................................................ 162
3.2.4 Good development practice ............................................................................... 164
3.2.5 Concluding remarks........................................................................................... 170
3.3 A rights-based approach to food security: Demanding accountable services as
a matter of rights and obligations ................................................................................... 171
3.3.1 Oxfam’s rights-based approach ......................................................................... 171
3.3.2 Background to the Shire Highland Sustainable Livelihoods Programme ......... 172
3.3.3 Programme activities in 2005/2006 ................................................................... 174
3.3.4 Focus on rights and obligations ......................................................................... 175
3.3.5 Sustainability and the role of the government ................................................... 177
3.3.6 Giving meaning to human rights: An actor-oriented approach ......................... 179
3.3.7 Are rights confrontational? ................................................................................ 182
3.3.8 Rights-based development principles ................................................................ 184
3.3.9 Concluding remarks........................................................................................... 191
3.4 A legal approach to food security: Legislation as a tool for transformation .................. 193
3.4.1 Introduction to the Right to Food Project .......................................................... 193
3.4.2 Background: The famine of 2001/2002 ............................................................. 195
3.4.3 Giving meaning to the right to food in Malawi: A word on process ................. 198
3.4.4 From freedoms to entitlements? ........................................................................ 200
3.4.5 Policies as politics ............................................................................................. 204
iii
3.4.6
What is the role of human rights principles in the draft bill and the Right
to Food Project? ................................................................................................. 206
3.4.7 Concluding remarks........................................................................................... 209
3.5 Conclusions and review of assumptions ......................................................................... 211
PART IV CONCLUDING DISCUSSION
SVENSK SAMMANFATTNING ....................................................................................... 224
BIBLIOGRAPHY ................................................................................................................ 226
Books and articles .................................................................................................................. 226
Research reports and papers ................................................................................................... 237
The African Commission on Human and People’s Rights .................................................... 238
UN documents and reports ..................................................................................................... 238
NGO reports and documents .................................................................................................. 242
Donor documents and reports ................................................................................................ 243
Evaluations ............................................................................................................................. 244
Press ....................................................................................................................................... 244
Treaties ................................................................................................................................... 245
Declarations ............................................................................................................................ 245
National legal and policy material, and surveys .................................................................... 245
Interviews (archived at Finnish Social Science data Archive under FSD2727) .................... 246
iv
ACKNOWLEDGMENTS
First of all I would like to thank the people I encountered in Malawi at the end of 2006. Doing
field research was a challenging process that brought me in touch with my own vulnerability.
This vulnerable state forced me into new insights – it opened up new possibilities and ways of
seeing. A special thanks goes to David Nungu, who helped me identify my lost suitcase at the
airport in Lilongwe; Fiona Mwale and Mary Kachale who assisted me with numerous
practical tasks; Joe Chunga who acted as my driver and research assistant; Christine Dun who
asked the right questions at the right time. Moreover, without the support of my hosts at
Church and Society, Oxfam Malawi, and staff at the Centre for Social Research at the
University of Malawi I would not have been able to conduct this work. Almost seven weeks
of field research was made possible thanks to funding from the Nordic Africa Institute.
Over the years, many colleagues have given me valuable comments on my research. I am
especially grateful for comments by Dr. Hans-Otto Sano, Dr. Celestine Nyamu-Musembi,
Professor Jemery Gould, Dr. Harri Englund, Siobhán McInerney-Lankford, Zairah Kahn as
well as my colleagues within the research project “Implementing a Human Rights-Based
Approach to Development” that was funded by the Academy of Finland (2006-2011). It has
been enriching to work within a research project in a team of researchers exploring similar
questions related to human rights and development. The majority of the funding for my thesis
has come from the Academy of Finland project but in addition the Finnish Graduate School in
Human Rights Research has also provided funding.
I want to thank my first supervisor Professor Martin Scheinin for encouraging me to write a
thesis and for being open to my multidisciplinary methods. I thank the Director of the Institute
for Human Rights, Professor Elina Pirjatanniemi, for commenting on a preliminary version of
this thesis and for her practical and emotional support. I am also grateful for valuable and
constructive comments by the pre-reviewers Professor Paul Gready and Dr. Thoko Kaime.
Last but not least I want to thank my family and friends. The past six years of writing (and
mothering) has involved transformation – the theme of my thesis – on all levels in my life. I
thank you for inspiring discussions, for pushing me, for supporting me, for being part of the
circle that means everything to me.
Alessandra Sarelin, October 2012
v
ABBRIVIATIONS
ADMARC Agricultural Development and Marketing Corporation
CEDAW Convention on the Elimination of All Forms Discrimination
against Women
CSO Civil society organisation
DBU Development Broadcasting Unit
DCHR Danish Centre for Human Rights
DEC District Executive Committee
DFID United Kingdom’s Department for International Development
DPP Democratic Progressive Party
ESCR Economic, social and cultural rights
FAO Food and Agriculture Organization of the United Nations
FFA Food for asset
FFW Food for work
FISP Farm Input Subsidy Programme
GA General Assembly of the United Nations
HRBA Human rights-based approach
ICESCR International Covenant on Economic Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
HIS Integrated Household Survey
JEFAP Joint Emergency Food Aid Programme
Malawi CARER Centre for Advice, Research, and Education on Rights
MBC Malawi Broadcasting Corporation
MCP Malawi Congress Party
MDGs Millennium Development Goals
MHRRC Malawi Human Rights Resource Centre
MoAFS Ministry of Agriculture and Food Security
MPI Multidimensional poverty index
MVAC Malawi Vulnerability Assessment Committee
NGO Non-governmental organization
NORAD Norwegian Agency for Development
OECD Organisation for Economic Co-operation and Development
PRA Participatory rural appraisal
PWESCR Programme for Women’s Economic, Social and Cultural Rights
RLC Radio listening club
RBA Rights-based approach
SGR Strategic Grain Reserve
SIDA Swedish International Development Agency
SHSLP Shire Highland Sustainable Livelihoods Programme
UNDP United Nations Development Programme
UDF United Democratic Front
VDC Village development committee
WFP World Food Programme
WLAS Women and Law in Southern Africa (NGO)
WMS Welfare Monitoring Survey
vi
PART I RESEARCH QUESTIONS, CONTEXT, AND
METHODOLOGY
1.1 Theoretical and methodological starting points
This research is interested in processes of change. Change is brought about by people and
groups who have agency and a vision for the kind of society they want to live in. The
theoretical starting point is the ‘constructivist’ view that “individuals and groups are not only
shaped by their world but can also change it,” as expressed by Audie Klotz and Cecilia
Lynch. New normative, cultural, economic, social, and political practices that change
conventional wisdoms are set into motion by people,1 who believe they can affect change in
their lives, as a perquisite for agency. Constructivism is increasingly the lead paradigm in
social science, with positivism no longer dominating except in economics and ‘number-
crunching’ sociology.2
Another theoretical starting point is that human rights are social constructions created by
people. This study relies on a discursive understanding of human rights, moving away from a
positivist view according to which human rights are ‘things’ that can be measured.3 Instead,
human rights are seen as social constructions that are discursively constructed,4 and therefore
by definition change over time.
John Searle makes a distinction between ‘brute facts’ and ‘institutional facts’. The former are
physical or natural facts while the latter are created by human agreement, through a shared
language. Institutional facts cannot exist as isolated units but only through being part of a
larger system of relationships to other facts. Social reality is created by social acts – and in
some sense this reality is only the continuous possibility to act.5 Human rights are institutional
facts that have come into existence through social agreement.
Constructivists claim that particular meanings become ‘stable’ over time, creating social
orders called structures or institutions. In this context, rules and norms set expectations about
how the world works, and what types of behaviour is legitimate.6 As long as international
human rights agreements are breached on such a massive scale as is the case today, one can
probably not say that human rights constitute very ‘stable’ institutional facts, however, there
is the continuous possibility for people and institutions (mainly states) to act according to the
human rights ideal that has been manifested in legal agreements. At the same time there is
also the possibility for individuals and groups to claim and demand respect for the human
rights ideal. The position taken in this study is that human rights are constantly being
negotiated and renegotiated, i.e., human rights are not static social constructions.
1
Audie Klotz and Cecelia M. Lynch, Strategies for Research in Constructivist International Relations (New
York: M.E. Sharpe, 2007) at 1.
2
Jan Nederveen Pieterse, Development Theory: Deconstructions/Reconstructions (London: Sage Publications,
2001) at 142.
3
See Jim Ife, Human Rights and Social Work: Towards Rights-Based Practice (Cambridge: Cambridge
University press, 2001) at 145.
4
See Neil Stammers, Human Rights and Social Movements (London: Pluto Press, 2009) at 10.
5
Johan R. Searle, Konstruktionen av den sociala verkligheten (Uddevalla: Daidalos, 1997; Original title: The
Construction of Social Reality, 1995) at 46, 49, 50.
6
Klotz and Lynch, Strategies for Research, supra note 1, at 8.
1
Institutional facts are of course not independent from brute facts of materiality or physicality.
Intuitional facts require some sort of physical realization, but the form they assume are not
decisive. Human rights, “in all their many forms, have to assume some materiality or
physicality for functioning as operative norms and standards.” This can be called the ‘material
infrastructure’.7 The material infrastructure of human rights includes international legal
agreements, monitoring mechanisms, institutions, reports, etc.
When it is accepted that ‘social reality’ is being constructed and reconstructed, it is clear that
a single text, such as the Universal Declaration of Human Rights, is open to multiple readings.
It is the reader rather than the author who ‘makes sense’ of it. In this world view, these
multiple wisdoms by the readers will be valued, “rather than single, unifying world views
imposed from above.”8 As articulated by Baxi, no text may “claim the status of unique
authorship and therefore claim axiomatic authority; the birth of the reader (as Roland Barthes
said memorably) entails the death of the author.”9
Yet, in human rights discourse ‘from above’ expert knowledge is given high value and
emphasis. However, there can be no independent and quasi-objective concept without falling
into a top-down practice in which “generalized truths are used to determine how to act in
specific contexts.”10 Jim Ife notes that such top-down perspectives are characteristic of
modernity and its search for certainty, order and predictability.11 Merry notes that human
rights conventions embody many of the ideals of modernity, offering a universal vision of just
societies. A particular cultural system that is rooted in a “secular transnational modernity” is
articulated in the human rights regime. Claims to ‘culture’ do not “justify deviation the culture
of transnational modernity,” 12 an issue I will come back to later. It follows from the
increasing relevance given to the international human rights system that ‘human rights
culture’ is a core aspect of “a new global, transnational culture, a sui generis phenomenon of
modernity.” At the core of its structuring ideas lies, according to Cowan et al, its
individualistic conception; addressing suffering through a legal/technical framework (instead
of e.g. an ethical); and emphasizing certain aspects of human relationships over others
(individual’s rights over an individual’s duties or needs). These are foundational ideas, even
though they are contested, as the authors point out, for example through processes related to
the African Charter on Human and Peoples’ Rights.13
However, the world in which any human rights-based development programme operates is
characterized by unpredictability and chaos.14 Imposing order on chaos and predictability on
uncertainty requires a lot of control, and often coercion,15 that goes against the idea of agency
and stifles initiative and ‘from below’ action. The actor-oriented and human rights
perspectives from below, which are raised in this study as an alternative to the more
7
Upendra Baxi, “Politics of Reading Human Rights: Inclusion and Exclusion of Human Rights”, in Meckled-
García & Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and
Human rights Law (London: Routledge, 2006) 182-200, at 189.
8
Ife, Human Rights from Below (Cambridge: Cambridge University Press, 2010) at 47.
9
Baxi, “Politics of Reading”, supra note 7, at 187.
10
Ife, Human Rights from Below, supra note 8, at 134.
11
Ibid., at 30.
12
Sally Engle Merry, “Constructing a Global Law-Violence against Women and the Human Rights System”, 28
Law & Social Inquiry (2003) 941-977, at 945-946.
13
Jane K. Cowan, Marie-Bénédicte Dembour and Richard A. Wilson, “Introduction”, in Cowan, Dembour &
Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001)
1-26, at 12.
14
Chaos does, however, not mean randomness or the absence of order; “it refers to the unpredictability of the
outcome of processes”. Pieterse, Development Theory, supra note 2, at 143.
15
Ife, Human Rights from Below, supra note 8, at 30.
2
conventional approaches, are postmodern perspectives that put emphasis on wisdom and
change from below.16
The theoretical basis for an actor perspective is from development sociology, here represented
by the work of Norman Long.17 The theoretical basis of the actor-oriented perspective on
human rights is in part from legal literature that does not position itself within the human
rights tradition, but which calls for evaluation of legal principles in terms of their concrete
effects in a social setting. Emphasis is on estimating consequences for less powerful groups
and/or individuals in society. Celestine Nyamu-Musembi quotes Joseph Singer who says we
must ask ourselves not only whether a social or legal practice works, but ‘works for whom’?
Due to power differences and hierarchical relationships in society there is need to look
beyond abstract formal equality principles. Through asking the question ‘works for whom?’
and translating the question into action, people change the terms of institutionalized
understandings of rights and make “the meaning of rights” real in their own context.18 This is
in accordance with the constructivist view that people have agency and are thereby capable of
altering meanings, structures, and institutional facts.
Human rights is not a discipline in its own right and research on human rights is found within
many disciplines. Human rights scholarship has historically been dominated by philosophy
and law, while international relations and political science have more recently devoted
growing attention to human rights.19 The perspective of this thesis is from the field of
international law, but due to the nature of the research subject it takes a multidisciplinary
approach. Study and interpretation of legal texts, such as international conventions, and the
activity of judicial or quasi-judicial institutions is only a small part of the research strategy
chosen. The usual perspective on human rights in international relations and political science,
that is to approach human rights as a state-centric practice,20 is also not sufficient to answer
the research questions on the role of human rights in development.
I have been especially inspired by research from the fields of anthropology,21 and community
development and social work,22 and wish to mention these disciplines as I believe they can
make considerable contribution to human rights studies. I have also been inspired by lawyers
who apply anthropological methods.23 Ethnography of human rights24 is an area of
scholarship that is essential for improving our understanding of the practice of human rights
in transnational as well as local contexts. The book The Practice of Human Rights: Tracking
Law Between the Global and the Local reveals that this practice is more complicated than
previously assumed. What is even more crucial is that when such studies are undertaken,
despite methodological challenges, they often suggest that the ‘practice’ being documented
and analysed potentially “transforms the framework through which the idea of human rights
16
‘Postmodern’ is a highly complex concept and examining its meaning is beyond the scope of this chapter.
Moreover, postmodernists tend to avoid definitions that are seen as engaging with the qualities of rationality and
objectivity that postmodernists deny. The Post-Modern Age is characterized by incessant choosing; pluralism is
the ‘ism’ of our time, which is seen as both the great problem and the great opportunity. See Krishan Kumar,
From Post-Industrial to Post-Modern Society (Oxford: Blackwell Publishers, 1995) 104-105.
17
See e.g. Norman Long, Development Sociology: Actor Perspectives (London: Routledge, 2001).
18
Celestine Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, 36 IDS Bulletin (2005)
41-51, at 41.
19
Stammers, Human Rights and Social Movements, supra note 4, at 12.
20
Ibid., at 12.
21
Sally Engle Merry’s work is important and also that of Marie-Bénédicte Dembour.
22
See Ife, Human Rights and Social Work, supra note 3; Ife, Human Rights from Below, supra note 8.
23
Celesetine Nyamu-Musembi’s work is important here.
24
See Mark Goodale and Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the
Global and the Local (Cambridge: Cambridge University Press, 2007).
3
itself is understood.”25 This is also a central thread in this study about human rights-based
development practice.
‘Discourse’ is widely used in social theory and analysis, inspired, for example, by Michel
Foucault, as a means of referring to different ways of structuring areas of knowledge and
social practice.26 The human rights community has its specific way of “talking about and
understanding the world”,27 and thereby we can refer to ‘human rights discourse’. While I do
analyse and refer to ‘discourse’, this study does not apply methods of discourse analysis. Key
approaches in discourse analysis are built on linguistics28 and this way of studying social
reality and change is not useful for the purpose of answering my research questions.
This study is ‘critical’ in the way that it tries to unmask dominant, taken-for-granted
understandings of reality. It wants to destabilise prevailing systems of meaning, especially
that of the human rights concept. It is when we see that our understandings of the world are
merely that – understandings – not the world itself that we can transform them into objects of
discussion and criticism and open to change.29
1.2 Research questions
An increasing number of people go hungry. Between 2007 and 2008 the number of
undernourished increased by 8 percent in Africa.30 At the same time as the number of the
hungry has risen, the levels of cereal production have been breaking records on a worldwide
basis.31 This shows that Amartya Sen has been right in pointing out that increasing production
will not solve global hunger.32
As the majority of the hungry live in rural areas and usually depend on small-scale farming or
are employed on large plantations, it is through supporting them that changes can take place.33
Hunger is a problem related to the lack of access to productive resources, the concentrated
input of the providers sector and insufficient support to the poor, i.e., of social, economic and
political structures. I agree with De Schutter et al that in the debates on hunger too little
attention has been paid to the imbalances of power in the food systems and to the failure of
the international economic environment. There are structural problems in the political
economy of food production and distribution chains.34 The question is whether human rights
practice and discourse, through the right to adequate food and human rights-based strategies
to food security, can contribute to challenging and transforming the structures that prevent
small-scale farmers in the global South feeding themselves and their communities.
25
Mark Goodale, “Locating Rights, Envisioning Law Between the Global and the Local”, in Mark Goodale and
Sally Engle Merry (eds), The Practice of Human Rights: Tracking Law Between the Global and the Local
(Cambridge: Cambridge University Press, 2007) 1-38, at 4.
26
Norman Fairclough, Discourse and Social Change (Oxford: Polity Press, 1992) at 3.
27
Definition of ‘discourse’ in Marianne W. Jørgensen and Louise Phillips, Discourse Analysis as Theory and
Method (London: Sage Publications, 2002) at 1.
28
Fairclough, Discourse and Social Change, supra note 26, at 1.
29
See Jørgensen and Phillips, Discourse Analysis as Theory and Method, supra note 27, at 176 and 178.
30
Food and Agriculture Organization, The State of Food Insecurity in the World 2011 (Food and Agriculture
Organization of the United Nations: Rome, 2011) at 8.
31
Olivier De Schutter and Kaitlin Y Cordes, “Accounting for Hunger: An Introduction to the Issues”, in De
Schutter & Y Cordes (eds), Accounting for Hunger: The Right to Food in the Era of Globalisation (Oxford: Hart
Publishing, 2011) 1-24, at 6.
32
See for example Amartya Sen & Jean Drèze “Hunger and Public Action”, in The Amartya Sen & Jean Drèze
Omnibus (Oxford: Oxford University Press, 1999).
33
De Schutter and Cordes, “Accounting for Hunger”, supra note 31, at 6.
34
De Schutter and Cordes, “Accounting for Hunger”, supra note 31, at 7.
4
This thesis believes that human rights law is not a tool that is going to re-shape the economic
domain. Although human rights law makes clear that the state has some responsibilities in the
economic sphere (at a minimum supervision), which places it in evident contrast with the
neo-liberal paradigm of the non-interventionist state, and even to the managerial, good
governance state; it remains, however, a fact that human rights operates on the margins of real
economic power.35 Paul Gready rightly points out that in the ongoing financial crisis there has
been an almost complete absence of human rights references in political or popular
discussions. Moreover, not even the successes of human rights discourse – Gready refers to
the Treatment Action Campaign in South Africa and the Right to Food Campaign in India –
have challenged the prevailing market-led economic model in these countries.36 Due to the
limited impact and potential I see for human rights in challenging and transforming the
dominant economic structures, nationally and internationally, this thesis will explore what
other, if any, transformative potential human rights have in development processes and
contexts. It explores the role of human rights in general and the right to food in particular in
development cooperation policy and practice. It does not investigate the question of whether
human rights-based development approaches lead to better development outcomes.
The starting point is that a rights discourse can have liberating effects at one moment and can
facilitate domination at another.37 Therefore, there is need for research into specific contexts
where human rights are used to further a development agenda. In part III, I will give an
analysis of three specific projects in Malawi in order to demonstrate the diverse roles that
human rights play in development processes.
A second starting point is that in the name of human rights advancement, a huge number of
schemes for transformation, regulation, and ‘governance’ have been established all over the
world.38 Some kind of transformation is indeed taking place and there are authors who call
this an expansion of modernity.39 It is less clear whether the expansion of the human rights
idea contributes to change that contest the status quo in favour of oppressed and marginalized
people and groups. This thesis investigates whether human rights, as they are further
integrated into development, contribute to transforming development practice and structures
that prevent agency for the poor and marginalised. Is it possible for human rights to be a
counter-hegemonic force in the face of hegemonic development? (I agree with Rajagopal that
as ‘development’ has been expanded to include everything from poverty alleviation,
democratization, rule of law, human rights, environmental sustainability to anti-corruption,
‘development’ has come to assume a hegemonic function.40) Are human rights creating space
35
Paul Gready, “Reasons to Be Cautious about Evidence and Evaluations: Rights-based Approaches to
Development and the Emerging Culture of Evaluation”, 1 Journal of Human Rights Practice (2009) 380-401, at
385, 388, 399.
36
Ibid., at 382, 386. I partly disagree that the Right to Food Campaign has not challenged the prevailing
economic model: it has challenged it but the structural changes sought have not been successful. See chapter
2.3.4.
37
Mahmood Mamdani, “Introduction” in M. Mamdani (ed.) Beyond Rights Talk and Culture Talk: Comparative
Essays on the politics of Rights and Culture (New York: St. Martin’s press, 2000) 1-13, at 6. One of the major
conclusions in the book Contested States is that “the power of law is at once hegemonic and oppositional.” See
Mindie Lazarus-Black & Susan f. Hirsch (eds) Contested States. Law, Hegemony and Resistance (New York:
Routledge, 1994) at 20.
38
Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Harvard University Press, 2010) at
227.
39
Merry, “Constructing a Global Law”, supra note 12, at 945-946; Cowan, Dembour and Wilson,
“Introduction”, supra note 13, at 12.
40
Balakrishnan Rajagopal, “Counter-hegemonic International Law: Rethinking Human Rights and Development
as a Third World Strategy”, in R. Falk, B. Rajagopal & J. Stevens (eds), International Law and the Third World:
5
for agency and empowerment? In order to answer these questions it is necessary to examine
more closely how the human rights concept has been defined, and by whom it has been
defined.
It is also necessary to be to be aware of the various forms that the so called human rights-
based approaches to development assume. There is no single definition of the concept ‘human
rights-based approach to development’ and, therefore, I agree with Patrick Twomey that it
makes sense to talk of human rights-based approaches instead of one approach.41 In this
thesis most variations of human rights-based and rights-based approaches appear in one form
or the other, and the ambition is to make the distinctions clear whenever necessary.
Moreover, there are clear tensions between human rights-based approaches to development
cooperation and to national development policy. For instance, the Indian MP Jaipal Reddy
makes clear that “a rights-based approach in public policy is a moral imperative” for India but
that a human rights-based approach to development cooperation is patronizing in its
assumption that donors know what it in the best interest of the South. Such an assumption
aims at introducing a rights-based approach to public policy from the outside, and “bring
about empowerment through the planning, programming and implementation activities of a
donor agency.” This approach seeks to bring about empowerment through external pressure
and is based on the conviction that to achieve poverty eradication there needs to be ‘good
leadership’, ‘good governance’ and the empowerment of ordinary people. Reddy highlights
that a rights-based approach to public policy, that comes from within the country is more
desirable as movement away from political, economic, and social oppression can only be
sustainable when it springs from within a society.42
This dilemma – human rights as a form of imperialism – cannot be avoided when
investigating the possible transformational role of human rights in development. It is further
perpetuated by the problem of the lack of accountability on the part of donors.43 According to
the human rights-based language now widely used in international cooperation and aid circles,
the people in the recipient countries are seen as rights-holders, and the national state is seen as
the primary duty-bearer, but it is not clear where the funder countries position themselves in
the ‘right-duties’ equation.44
While being sympathetic to human rights-approaches to public policy, it is the more
interventionist human rights strategies that are the main focus in this thesis. Therefore, a
second set of questions arise concerning development planning and programming. What
difference do human rights make as they enter into development programmes and projects,
what new elements are brought in, and what value is added? What are the characteristics of
the so called human rights-based approaches to development cooperation, compared to ‘good
development practice’? How are ‘legal approaches’ to be regarded? (A legal approach to
human rights is internally diverse but a central feature is that the idea of human rights must be
legislated, legally recognised, and codified.45) I will approach these questions on a general
Reshaping Justice (London: Routledge-Cavendish, 2008) 63-79, at 65. “Hegemony” is the social, cultural,
ideological, or economic influence exerted by a dominant group.
41
Patrick Twomey, “Human Rights-Based Approaches to Development: Towards Accountability”, in Mashood
Baderin (ed.), Economic, Social and Cultural Rights in Action (Oxford: Oxford UP, 2007) 45-69, at 49.
42
Statement by Mr.S. Jaipal Reddy, Member of Parliament on the agenda item 88, Operation activities for
development at the Second Committee of 57th UNGA on October 28, 2002. Available at http://secint04.
un.org/india/ind661.pdf, visited 4 December 2011.
43
Ibid.
44
Andrea Cornwall and Celestine Nyamu-Musembi, “Putting the ‘Rights-Based Approach’ to development into
perspective”, 25 Third World Quarterly (2004) 1415-1427, at 1424-25.
45
Goodale, “Locating Rights”, supra note 25, at 6.
6
level as well as on a more particular level, looking at proposed human rights-based
approaches to food security.
It should be noted that this study is not restricted to exploring the role of human rights law,
but rather that ‘human rights’ is seen as a phenomenon much broader than a formalistic and
legalistic understanding of the human rights concept would entail. We can distinguish
between internationally recognized human rights in legal documents and human rights in
social relationships and as cultural practice. Naturally there is no strict division between the
two, but having this picture in mind can help when reading my work. As the human rights
idea enters into development work, it is not only or even primarily in the shape of legal texts.
In human rights-based strategies for development, human rights ideas inform and inspire the
whole working process, and this process takes place in social relationships within
communities, families, households, workplaces and public spaces. This study is concerned
with the processes of ‘development’ that set out to claim and achieve human rights through
different channels. In this context, ‘the law’ and ‘legal’ has a social theory definition. Social
theory focuses on law as a ‘social process’ – not solely a text or formal legal structures.46
1.3 Literature on the ‘added value’ of human rights-based approaches to
development
This thesis is not limited to exploring the so called human rights-based approaches to
development cooperation but since the immediate need to answer questions on the ‘value
added’ by human rights has partly sprung from the growing popularity of such approaches
attention is devoted to whether human rights-based approaches make a difference. In this
overview, I will review what other authors have suggested in terms of the new and added
value of various human rights-based approaches to development.
The fact that the Vienna Declaration and Programme of Action of 199347 stressed the link
between human rights and development was a window of opportunity for further integration
of the two discourses. With the trend within human rights of embracing much broader
concerns for human dignity, such as access to resources (i.e., economic and social rights),
came the need among human rights groups to engage with development actors and with civil
societies and social movements.48
In the report Renewing the United Nations: A Programme for Reform, which was launched in
1997, the Secretary General made the following statement: “A major task for the future will
be to enhance the human rights programme and integrate it into the broad range of the
Organization’s activities, including in the development and humanitarian areas.”49 This
ambition gradually led to the so called Stamford consensus document of 2003 in which
46
Caroline Moser and Andy Norton, To Claim Our Rights: Livelihood Security, Human Rights and Sustainable
Development (Overseas Development Institute, 2001) at 21. This view has a bases in the anthropological concern
with ‘law as process’ aimed to get away from a concern with rules as such in order to focus on how those rules
were implemented or not. Olivia Harris, “Introduction”, in O. Harris (ed.), Inside and Outside the Law (London:
Routledge, 1996) 1-15, at 4. Critical social theory of law (with thinkers such as Bourdieu, Foucault and Gramsci)
tries to show the contribution of law to resilience and pervasiveness of domination in hegemonic and counter-
hegemonic processes. See Boaventura de Sousa Santos and César A. Rodríguez-Garavito, “Law, Politics, and the
Subaltern in Counter-Hegemonic Globalization”, in de Sousa Santos & Rodríguez-Garavito (eds), Law and
Globalization from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005) 1-
26, at 6.
47
Adopted by the World Conference on Human Rights, 25 June 1993.
48
Jethro Pettit and Joanna Wheeler, “Developing Rights? Relating Discourse to Context and Practice”, 36 IDS
Bulletin (2005) 1-8, at 2.
49
UN doc. A/51/950, 14 July 1997, para. 196.
7
participating agencies agree on a Common Understanding on a Human Rights-based
Approach to Development within the UN system.50
In early 2000, there was a debate between Peter Uvin and Hugo Slim about the potential of
further integration between human rights and development. Uvin stated that much of the
policy declarations and exhortations for the need for integration “risks being little more than
rhetorical, feel-good change, further legitimizing historically created inequalities and
injustices in this world.”51 While Uvin was very critical of this agenda, he did see a potential
in the so called human rights approach to development, in which “the mandate of
development itself may be redefined in human rights terms, potentially bringing about a
fundamental rethinking of the development paradigm itself”.52 In this ‘new paradigm’ the
boundaries between human rights and development would disappear, and both become
conceptually and operationally inseparable parts of the same process of social change.53 As he
saw very little evidence that this was taking place, Uvin’s conclusion was that there is less to
the emerging human rights approach in the development regime than meets the eye. He was
concerned that the status quo is not being challenged sufficiently.54 The question is whether
today there is more evidence to support the claim that hegemonic development is challenged
by human rights arguments.
We should keep in mind that the question of new dimensions and value added can be
approached from many different angles and perspectives. It can be looked at from the
perspective of either the development actors (donors, states, NGOs, etc) or the target groups
(‘beneficiaries’) of development aid.55 Clearly more studies have been devoted to the first
perspective rather than the second. I argue that the questions should be looked at holistically,
since whatever is changed in the practices of development actors also will have an impact on
target groups. However, it is more challenging to measure concrete benefits and impacts in
the lives of target groups compared to studying policy and practice of agencies and
organisations.
Uvin raised doubts whether further integration of human rights and development can have any
impact on donor practices and he claimed that it is merely rhetorical repackaging of ‘old wine
into new bottles’.56 Slim, on the other hand, identified potential in NGOs that have strong
links to marginalised groups and start basing their efforts on human rights-based approaches,
thereby supporting genuine struggles for rights.57 Hans-Otto Sano made a similar argument a
few years later. He claimed that human rights have become increasingly important as a source
of inspiration for local development efforts and for local advocacy.58 Examples of this are
presented in the Malawi case-study in part III.
50
The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among
UN Agencies, developed at the Inter-Agency Workshop on a human based approach in the context of UN
reform, 3-5 May 2003, Stamford. Available at http://hrbaportal.org/?page_id=2127, visited 10 May 2012.
51
Peter Uvin, “On High Moral Ground: The Incorporation of Human Rights by the Development Enterprise”,
XVII PRAXIS The Fletcher Journal of Development Studies (2002) 1-11, at 1.
52
Ibid., at 2. See also Peter Uvin, Human Rights and Development (Bloomfield: Kumarian Press, 2004).
53
Uvin, “On High Moral Ground”, supra note 51, at 6.
54
Ibid., at 10.
55
Hans-Otto Sano, “Does Human Rights-Based Development Make a Difference?” in Salomon, Tostensen &
Vandenhole (eds), Casting the Net Wider: Human Rights, Development and New Duty-Bearers (Antwerp:
Intersentia, 2007) 79-63, at 63.
56
Uvin, “On High Moral Ground”, supra note 51, at 2 and 4.
57
Hugo Slim, “A Response to Peter Uvin, Making Moral Low Ground: Rights as the Struggle for Justice and the
Abolition of Development”, XVI PRAXIS The Fletcher Journal of Development Studies (2002) 1-5, at 4.
58
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
8
In the struggle for rights, Sano believes that human rights-based approaches potentially can
“strengthen national strategies and social and political movements on account of a shared
foundation of norms and rights”.59 As will be seen in the chapter on rights-based approaches
in Malawi, it is, however, not very clear that the human rights concept always offers a shared
foundation.
There is, moreover, a risk of romanticising local NGO work in the area of human rights and
development. Paul Nelson and Ellen Dorsey remind us that NGOs invoke human rights as a
source of power; and in NGOs’ search for sources of power it is difficult to disentangle
organisational and principled political objectives.60 Srirak Plipat also finds evidence that the
potential of rights-based approaches is diminished because NGOs interpret and use these
approaches in ways that correspond with their organizational backgrounds and expertise.61
Nelson and Dorsey find more evidence of human rights playing a role in mobilization for
resistance against policy changes such as privatisation than of human rights arguments
succeeding in pressing governments to provide services more equitably, adequately and
effectively.62 Sano finds similar question marks and areas where it is difficult to show what
impact and value added human rights and human rights-based approaches to development
have. He finds it challenging to prove that poor and marginalised target groups achieve
improvements in their economic, social and political conditions through a human rights-based
strategy.63
It seems easier to show that human rights-based strategies bring in new dimensions to
advocacy on poor people’s claims in the form of right’s defence and promotion than to show
concrete improvements in the protection of rights of poor and marginalised individuals. The
interaction between legal standing and social mobilization around economic and social rights
has, according to Nelson and Dorsey, powerfully contributed to new rights (the right to
water), to new understandings of the implications of these rights, and to new strategies and
language for their promotion by NGOs outside of the historic human rights field.64 What is
less clear is the impact of these new strategies on achieving social change in favour of
disadvantaged people, either through the work of social movements or in development
programming.
Darrow and Tomas raise five interrelated points on what comparative advantage a human
rights-based approach brings to development programming: (1) a normative basis for values
and policy choices that otherwise are more or less negotiable; (2) a predictable framework for
action that is objective, determinate and defines the appropriate legal limits; (3) an
empowering strategy for the achievement of human development; (4) legal means to secure
redress for violations; and (5) a basis for accountability.65 The other authors referred to above
have raised similar points, but with less focus on accountability and redress. This argument on
59
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
60
Paul J. Nelson and Ellen Dorsey, New Rights Advocacy: Changing Strategies of Development and Human
Rights NGOs (Washington DC: Georgetown University Press, 2008) at 170.
61
Srirak Plipat, “Developmentazing Human Rights: How Development NGOs Interpret and Implement a Human
Rights-Based Development Policy” (Dissertation, University of Pittsburg, 2005) at 6. Available at
http://etd.library.pitt.edu/ETD/available/etd-02222006145152/unrestricted/Srirak_Plipat_2006_dissertation_ all_
chapters.pdf, last visited 26 January 2012.
62
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 182.
63
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 68.
64
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 172.
65
Mac Darrow & Amparo Tomas, “Power, Capture, and Conflict: A Call for Human Rights Accountability in
Development Cooperation”, 27 Human Rights Quarterly (2005) 471-538, at 485-486.
9
the value added by the human rights framework was nevertheless raised early in the debates
on the human rights-approach to development assistance.66
I agree that the two first points are, in theory, what human rights-based approaches, as defined
e.g. in the so called Common Understanding among UN agencies,67 set out to do, but I am
hesitant to whether this is an advantage that can be generalised. While human rights violations
in the name of development should never be accepted, I question the value in having a
framework that is ‘objective’ and ‘determinate’ because this inevitably leads to top-down
approaches, an issue I will return to.
The forth point is quite straightforward, at least in theory. In practice there are many obstacles
for socially weak groups to seek redress for human rights violations. On the fifth point, it is
again, in theory, quite clear that human rights potentially function as a basis for demanding
accountability but from whom and in what forum is not at all straightforward, as will be
shown in the section on accountability. Similarly, the question as to whether human rights are
‘an empowering strategy of human development’ will be debated in chapter 2.4.7 and it
should be explored more deeply in further research. These questions should always be
answered in a specific context where political, legal, historical, and financial factors all play a
role.
In addition, Siobhán McInerney-Lankford sees that the answer to the question of ‘added
value’ of human rights discourse lies in the realm of accountability and obligations.68 She
notes that human rights should be integrated more systematically into development policy and
practice, inter alia, because human rights treaty obligations are legally binding States parties,
as a matter of public international law, and as such they should be respected in all contexts,
including development. The assumption, as expressed by McInerney-Lankford, is that
“greater reliance on human rights law might provide one effective way to promote a more
systematic, explicit and coherent approach to the integration of human rights in
development”.69 While valuing an emphasis on obligations, this thesis is concerned that a
legalistic approach is unrealistic and elitist in most Southern contexts and has little value on
the local level. I share Gready and Ensor’s concern about what they call the ‘legal reflex’
within human rights discourse, i.e., the assumption that the “resort to law is the most effective
and perhaps only form of protection and remedy”. This is not to deny the importance of the
law, but equal importance should be given to political and social processes in securing human
rights.70 In Nelson’s and Dorsey’s study, NGOs find that the political power of human rights
stems from their role in social movements while their legal power depends on their status as
internationally recognised legal standards. NGOs use human rights as a way of reframing
debates and as a tool for resisting neo-liberal economic norms and intellectual property rights.
66
See The Human Rights Council of Australia, The Rights Way to Development: A Human Rights Approach to
Development Assistance (The Human Rights Council of Australia, 1995); Birgitte I. Hamm, “A Human Rights
Approach to Development”, 23 Human Rights Quarterly (2001) 1005-1031.
67
Common Understanding, supra note 50.
68
Siobhán McInerney-Lankford, “Human Rights and Development: a Comment on Challenges and
Opportunities from a Legal Perspective”, 1 Journal of Human Rights Practice (March 2009) 51-82, at 53.
69
Ibid., at 52.
70
Paul Gready and Jonathan Ensor, “Introduction”, in Gready & Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 1-44, at 9. This is
also discussed in Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 66;
and Jeremy Holland, Mary Ann Brocklesby and Charles Abugre, “Beyond the Technical Fix? Participation in
Donor Approaches to Rights-Based Development”, in Samuel Hickey & Giles Mohan (eds), Participation: From
Tyranny to Transformation (London: Zed Books, 2004) 252-268, at 255.
10
At the individual level they use human rights as a source of empowering language and
concepts.71
Some argue that the main value added by so called human rights-based approaches to
development is that they can potentially re-politicize areas of development work.72 It is
argued that redefining development work as based on human rights claims rather than charity
or benevolence is not a neutral act. Poverty is not natural or inevitable but created by deep-
rooted or structural inequalities and unequal power relations. Moreover, it is the work of
politics to focus on underlying causes of poverty and to challenge asymmetries of power.73
As the political character of human rights in development is recognised, this creates the fear
that these approaches can be too interventionists. While the tension between the rights of
states and the rights of citizens, who may be oppressed within these states, is not new in
human rights debates, the expansion of human rights-based approaches in various shapes and
forms brings in new dimensions to these tensions. Uvin applauds “the move away from the
dominant reductionist and technical [development] approaches of the past”, but he recoils
from the “thought of the limitless intervention seemingly condoned if not morally justified by
the emerging agenda.”74 He fears that the legitimacy of the human rights standards may be put
into question as the West intervenes “ever more frequently but ever more inconsistently in the
affairs of other societies”.75 In order to deal with this fear, Uvin suggests a radical capacity
building approach, which entails a transfer of the power of initiative and conceptualization to
local actors.76 (See section on ‘alternative development’.) I suggest that an actor-oriented
perspective on human rights should be part of such a radical approach so that the local actors
also have the power to contribute to giving meaning to the human rights concept. When
human rights enter into development as ready-made concepts with predetermined goals this
stifles initiatives from local actors.
Uvin, McInerney-Lankford, Sano, and Gready and Ensor seem to agree that strengthening the
human rights perspective in development is not an answer to all the shortcomings of the
development enterprise. We should be clear about the limits of the overlaps between the two
fields. The relevance of human rights to development processes may not be generalized, nor
involve all human rights.77 Sano summarizes some critical perspectives on human rights-
based approaches to development with the statement that there is, inter alia, a risk of
exaggerating the strategy’s potential. This may occur especially in the area of transforming
power relations and when addressing the so called root causes of poverty.78 This thesis
supports the fact that there is reason to be careful in drawing conclusions on the role of human
rights in transforming power relationships, especially if more conventional definitions of
‘human rights’ are accepted. However, I find that these difficult questions cannot be avoided
when studying the potential transformative power of human rights in development. Human
rights have little value if they have no impact on the relationship between rights-holders and
duty-bearers. Similarly, if structural reasons for poverty and human rights failure are not
addressed human rights-based approaches will be used to maintain the status quo rather than
71
Nelson and Dorsey, New Rights Advocacy, supra note 60, at 169-172.
72
Slim, “A Response to Peter Uvin”, supra note 57, at 3; Cornwall and Nyamu-Musembi, “Putting the ‘Rights-
Based Approach’”, supra note 44; See also Gready and Ensor, “Introduction”, supra note 70, at 23.
73
Gready, “Reasons to Be Cautious”, supra note 35, at 389-390.
74
Uvin, Human Rights and Development, supra note 52, at 195.
75
Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), at 19.
76
Uvin, Human Rights and Development, supra note 52, at 198.
77
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 58.
78
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 67 and 79.
11
challenging it. I agree with Gready and Ensor that an engagement with rights should stimulate
a political transformation rather than seeking only technical and quantifiable outcomes.79
The above summary of some of the attempts to answer the question regarding the possible
added value of human rights in development cooperation indicates the importance and need
for further research in this area. As will be shown in this thesis, and as has been shown by
other studies, it is clear that different actors use human rights in general, and human rights-
based approaches to development in particular, in various ways. Therefore human rights play
diverse roles in development, depending on the context and the actors involved. It is difficult
to make generalisations about, for instance, the so called added value of human rights-based
approaches as the question can only be answered in a specific context.
1.4 Purpose and assumptions
This thesis provides empirical data on the role, meaning, and value of human rights in the
effort to confer food security in Malawi. The purpose is to: (1) identify the role of human
rights, particularly the right to food, in three development efforts with the aim to strengthen
food security in Malawi; (2) identify what is characteristic of the three case studies
representing charity-based, rights-based and legal approaches to food security; (3) identify the
possible value added of human rights and principles that are said to come with them in these
efforts in terms of the transformative potential.
The assumption I had before going to Malawi to gather data for the analysis was that human
rights offer a new way of working, thus also adding value to ‘good development practices’, in
three interrelated ways: (1) human rights language changes the mindset of the actors in
development, underlining the legally binding nature of addressing food insecurity, and
contributing to empowerment of rights-holders; (2) human rights-based situation analysis
implies that a complete range of new and different questions, which have a basis in the
normative human rights framework, are raised in a development context; (3) human rights
offer a platform to demand accountability of duty-bearers. These assumptions were the
starting point when going into the field to collect data. The assumptions are presented here in
the way they were formulated in the early phase of the research process. When drawing
conclusions the assumptions are evaluated.
It is clear that many development organisations have realised the power of using human rights
language, and that by using this language they can increase the legitimacy of development.
Some would even argue that development agencies implement human rights-based
approaches only on a rhetorical level, changing the language of their programme description
documents but not the logic behind their work.80 This is perhaps true in some cases. The
assumption I had in the beginning of this research was, however, that human rights-based
approaches have potential to change the business of development on more than the surface
level. The shift to rights-based language, according to which poor people are ‘rights-holders’
instead of ‘beneficiaries’, may contribute to a sense of empowerment: efforts are made to
create an environment in which people can mobilise, express and raise concerns and
ultimately claim and realise their human rights.
The second assumption builds on the importance of careful situation analysis. When problem
analysis raises questions such as who is responsible for taking steps towards progressively
79
Gready and Ensor, “Introduction”, supra note 70, at 23.
80
See e.g. Emma Harris-Curtis, Oscar Marleyn and Oliver Bakewell, The Implications for Northern NGOs
Adopting Rights-Based Approaches (England: INTRAC, Occasional Papers Series No: 41, 2005) at 18.
12
realising the right to food and what obstacles are hindering these steps from being taken,
focus is directed to structural issues such as legislation and policy, power and politics, action
and non-action by institutions, exclusion and marginalisation as well as rights-holders’ lack of
possibilities to participate.81 One can say that the normative human rights framework gives a
road map for development, directing situation analysis (and therefore also the so called
interventions) onto a new path. Focus is shifted from short-term technical solutions (e.g.
service delivery) to promoting long-term structural change. It is especially useful to identify
the structural causes of food insecurity, i.e., to look beyond for instance drought, at issues
such as lack of access to livelihood resources, government social security, and other
entitlements, which could enable people to cope with natural disasters.82 This is related to the
entitlement dimension of human rights, meaning that human rights imply entitlements to
action by government.83 This second assumption is connected to one important element of a
human rights-based approach highlighted in the so called Common Understanding, i.e.,
identifying rights-holders (and their entitlements) and corresponding duty-bearers (and their
obligations) and working towards strengthening the capacities of rights-holders to make their
claims, and of duty-bearers to meet their obligations.84
The third assumption is that focus on holding duty-bearers accountable is what really makes
the human rights-based approach to development a new way of working.85 The implications
for addressing accountability, however, need to be investigated.86 Which actors are seen as
accountable to whom and on what grounds? What kinds of strategies are used to achieve
accountability?
The first assumption deals more with possible benefits for the rights-holders than for
development actors, although no strict division is made. The assumption is that when and if
rights-holders start demanding various services that are relevant to food security as a human
rights issue, duty-bearers are forced to deal with issue of food security as a matter of fulfilling
a human rights duty.87 This contributes to a sense of empowerment among rights-holders. The
analysis is not trying to measure possible tangible benefits for the poorest as this would
demand the use of quantitative methods in the form of socio-economic indicators.88
The question of demanding services and action from duty-bearers is related to the third
assumption about accountability. It is a question of relevance for both development actors and
beneficiaries. In most cases, beneficiaries are not in the position to demand accountability
from power holders on their own but need the support by local, national, and sometimes even
81
Similar list provided in Office of the United Nations High Commissioner for Human Rights, “Frequently
Asked Questions on a Human Rights-Based Approach to Development Cooperation”, 2006, at 27.
82
Supriya Akerkar, “Rights, Development and Democracy: A Perspective from India”, in P. Gready and J.
Enson (eds), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice
(London: Zed Books, 2005) 144-155, at 151.
83
George Kent, Freedom from Want: The Human Right to Adequate Food (Washington D.C.: Georgetown
University Press, 2005) at 93.
84
Common Understanding, supra note 50, para. 3.
85
Uvin makes the argument that concerns with mechanisms of accountability are what distinguishes charity from
claims. Uvin, Human Rights and Development, supra note 52, at 131. See also Amparo Tomas, “Reforms that
Benefit Poor People – Practical Solutions and Dilemmas of Rights-Based Approaches to Legal and Justice
Reform”, in P. Gready and J. Enson (eds), Reinventing Development? Translating Rights-Based Approaches
from Theory into Practice (London: Zed Books, 2005) 171-184, at 173.
86
Sano points out that “the demand for accountability during the last 15 years has not done very much to clarify
precisely where the accountability lies”. Sano, “Does Human Rights-Based Development Make a Difference?”,
supra note 55, at 72.
87
‘Services’ that are based on human rights entitlements can be interpreted broadly to mean material goods,
protection and respect. See Kent, Freedom from Want, supra note 83, at 93.
88
See Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 75.
13
international groups. The second assumption about the potential added value of human rights
in situation analysis has more to do with changing strategies in programming, and it could be
assumed that it is therefore more relevant for the development actor than for beneficiaries.
However, the analysis has shown that it is in fact rights-holders themselves that, with some
assistance, do this kind of analysis that then leads to mobilizing efforts to demand for changed
and improved practices. When fulfilled, these demands do bring tangible benefits for the
rights-holders, e.g. in the form of agriculture extension services, improved water outlets or
teachers.
All three assumptions try to pinpoint the transformative potential of human rights and a
human rights-based approach to development. Can human rights contribute to societal, legal,
and political change that strengthens the position/voice of the rights-holders?
1.5 The food security situation in Malawi
Malawi is commonly known among tourists as the Warm Heart of Africa. It is a landlocked
country south of the equator in Sub-Saharan Africa. Malawi is among the poorest countries in
the world, ranking 171 in the UNDP’s Human Development Index 2011,89 despite recent
annual growth rates of 6.8 percent (2004-2010).90
It is beyond doubt that food insecurity in Malawi is a chronic problem that is caused by a
complex web of factors, including diminishing farm size, weak access to markets, high
prevalence of HIV/AIDS, weak governance,91 and chronic poverty. Around 2005 about 52
percent of the population was living below the national poverty line and 22 percent were
classified as ultra poor who could not afford to meet the minimum standard for recommended
daily food requirement.92 According to UN sources this figure has not improved: the Human
Development Report 2011 reports that more than 52 percent of the population are affected by
multidimensional poverty,93 a concept that is reviewed in chapter 2.3.1 of this study. Forty-
four percent of children under five are chronically malnourished and around 20 percent are
unable to meet their minimum food requirements.94
The Welfare Monitoring Surveys (WMS) conducted by the National Statistical Office in
Malawi does, however, show a reduction in poverty from 50 percent in 2005 to 39 percent in
2009. This reduction took place over the implementation period of the Farm Input Subsidy
Programme (FISP) and may be due to the increase in maize production under FISP, but
analysts also speculate that the WMS is not reliable since it is based on imputed consumption
89
UNDP, Human Development Report 2011: Sustainability and Equality, A Better Future for All, at 126.
Available at http://hdr.undp.org/en/media/HDR_2011_EN_Tables.pdf, visited 30 August 2012.
90
Richard Mussa and Karl Pauw, “Poverty in Malawi: Current status and knowledge gaps”, International Food
Policy Research Institute, Policy Note 9, December 2011, at 1. Available at http://www.moafsmw.org/
ocean/docs/Research/masspn9-CurrentStatusOfPoverty.pdf, visited 14 September 2012.
91
Eunice G. Kamwendo, “Knowledge Review and Gap Analysis: Hunger and Vulnerability in Malawi”, a report
by Regional Hunger and Vulnerability Programme, July 2006, at 1 and 7. ‘Hunger’ is the inability to meet the
minimum daily recommended food requirement. Ibid, at 3. Available at http://www.wahenga.org/
news/news_item.php?news=88, valid as of 6 June 2008.
92
See Republic of Malawi, National Statistical Office, “Integrated Household Survey 2004-2005”, October
2005, at 138-139. The national poverty line is a subsistence minimum expressed in Malawi Kwacha and
comprised of two parts: minimum food expenditure based on food requirements and critical non-food
consumption.
93
UNDP, Human Development Report 2011, supra note 89, at 144.
94
UN Development Assistance Framework, UNDAF Malawi 2008-2011, at 11. Available at
http://www.unmalawi.org/reports/undaf/undaf_malawi_2008-2011.pdf, visited 20 August 2012. See also The
World Bank, Malawi Country Brief 2012. Available at http://web.worldbank.org/, visited 20 August 2012.
14
expenditures rather than actual values.95 The most recent Integrated Household Survey (IHS)
shows an improvement in welfare in terms of basic needs. While the second IHS (2005)
reported that almost 57 percent of households felt they had inadequate food consumption, the
report published covering the period of 2010-2011 indicates that this figure has fallen to 38
percent.96 The same report shows that poverty and food insecurity in Malawi takes on a
distinct gender dimension: 46.3 percent of female headed households reported inadequate
food while the same figure for male-headed households was 35.8 percent.97 Paradoxically,
women are the main food producers: about 70 percent of agriculture labour is carried out by
women.98
There is persistent lack of economic opportunity either to produce one’s own food through
subsistence farming or to exchange labour for an income that is needed to purchase adequate,
safe and nutritious food.99 There is a cycle of poverty where farmers lack input because they
do not have cash, so they work in other people’s fields (ganyu), and this leads to a situation
where the household suffers from a lack of labour.100 As an end result the household does not
have enough food
Numerous reports analysing the problem and possible solutions have been produced. In a
report from 1994, the problems discussed were low maize productivity, poor weather, and
population growth. Policy issues raised were land policy, marketing and pricing policy,
research and technology, agricultural input policies, and employment and wages policy.101 In
the Food Security Policy of 2006 many of these issues reoccurred: promoting irrigation was a
priority together with ensuring access to fertilizers. Land policy and the new Land Bill were
briefly referred to.102 On the operational level, the Ministry of Agriculture and Food Security
was working with no less than 45 policies.103 The Technical Secretariat within the Ministry
was coordinating 150 food security projects.104
During my interviews with representatives of relevant ministries, donors, and NGOs working
to improve food security, a long list of causes for the persistent hunger problem was given.
Lack of rain105 was mentioned by almost everyone as being one factor leading to the recurrent
food crisis situations facing Malawi in the past ten years. A typical statement was: “The cause
95
Mussa and Pauw, “Poverty in Malawi”, supra note 90, at 2.
96
Republic of Malawi, National Statistical Office, “Integrated Household Survey 2010-2011”, September 2012,
at 140. Available at http://www.nso.malawi.net/images/stories/data_on_line/economics/ ihs/IHS3/IHS3_
Report.pdf, visited 19 September 2012.
97
Ibid., at 143.
98
Asiyati Lorraine Chiweza, “The Challenges of Promoting Legal Empowerment in Developing Countries:
Women’s Land Ownership and Inheritance Rights in Malawi,” in Dan Banik (ed.) Rights and Legal
Empowerment in Eradicating Poverty (Surrey: Ashgate, 2008) 201-216, at 205.
99
Food Security Policy, produced by Ministry of Agriculture and Food Security, Malawi, August 2006, at 4.
100
It should be noted that in subsistence agriculture everyone depends solely on manual labour, there is almost
no use of animal power or tractors.
101
Louis A.H. Msukwa, “Food Policy and Production: Towards Increased Household Food Security”, Centre for
Social Research, March 1994.
102
The issue of land policy reform is sensitive in Malawi and during my interviews I was given conflicting
information as to its relevance for food security. A top official in the MoAFS argued that “land is not a major
issue in Malawi” (Interview No. 23 with Ministry of Agriculture and Food Security, Malawi, December 2006),
while officials involved in the reform made the opposite statements (Interview Nos. 25 and 34, Malawi,
December 2006. FSD2727.)
103
Malawi Agriculture Policy Framework: Logical Framework for Agriculture Sector Policy Documents, May
2006.
104
Field diary, notes from discussion with Adviser in Technical Secretariat, 12 December 2006.
105
During the past ten years at least five severe droughts have damaged the harvests.
15
of the food shortage was quite natural: the rains were not just there.”106 Only rarely did the
informant link past policy decisions to the food security situation in the country today (“this
problem is a result of accumulated effects of wrong actions, wrong decisions, wrong
policies”),107 thereby linking food shortages to the responsibility of those involved in deciding
on policies. This sort of shift in the awareness and analysis of the food insecurity problem,
away from seeing it as ‘natural’, would be critical when moving from a charity-based to a
rights-based approach to development, i.e. putting legislation, policy and practice in place that
supports the realisation of the right to adequate food. According to Amartya Sen famine is
always a social phenomenon and classifying famines into ‘man-made’ and ‘nature-made’ is
often misleading. Even when the prime mover in a famine is a flood or drought, what the
impact will be on the population would depend on how society is organised.108
Land policy (or the lack thereof) is one example of how food insecurity has been made worse
by past policy decisions. From independence in 1964 until 2002 there was no comprehensive
land policy in the country. During the 1970s and 80s, when tobacco growing was profitable,
land was continuously transferred from customary ownership to private tenure for the estate
sector, the result being a declining size in land holdings.109 Bias in favour of the estate
production has led to shortage of arable land in some regions. Failure to deal with land policy
has no doubt contributed to current problems of poverty, food insecurity, and inequalities in
access to arable land.110 Increased land fragmentation has contributed to a situation where
farmers with less than one hectare, which is more than half of all farmers,111 have been
identified as a category of food insecure households in need of special support.112
The problems created by unclear and non-existing policies were being addressed at the time
of the interviews as there was a land policy reform underway in 2006. A Special Law
Commission had reviewed all land related laws and drafted one comprehensive Land Act
based on the policy from 2002. The Land Bill was in the process of being reviewed in
Parliament at the time of my field research. One proposal was that all land, including
customary land, is privatized and titled.113 Sixty-five percent of the land in Malawi is
customary land that the ‘owner’ has the right to use but has not a formal title to,114 and
allocation of rights to such land is the responsibility of traditional leaders.115 The policy seeks
to encourage customary landowners to register land holdings as private customary holdings
with land tenure rights.116 It remains to be seen if these quite radical proposals will be adopted
as law, and what impact it will have on food security. This sensitive issue has taken many
106
Interview No. 33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
107
Interview No. 1 with Malawi Human Rights Commission, Malawi 2006. Also Interview No. 3 with donor,
Malawi 2006. FSD2727.
108
Sen and Drèze “Hunger and Public Action”, supra note 32, at 46.
109
Msukwa, supra note 101, at 5; Interview No. 25 with Ministry of Lands, Physical Planning and Surveys,
Malawi 2006. FSD2727.
110
Government of the Republic of Malawi, Malawi National Land Policy, January 2002, para. 2.4.2.
111
Ibid., para. 2.1.4.
112
United Nations, Common Country Assessment of Malawi, March 2001, at 8. Available at
http://www.undg.org/documents/1676-Malawi_CCA_-_Malawi_2001.pdf. See also Kamwendo, “Knowledge
Review”, supra note 91, at 5.
113
About 65 percent of all land in Malawi is categorized as customary land. Interview No. 25 with Ministry of
Lands, Physical Planning and Surveys, Malawi 2006; Interview No. 34 with Special Law Commission on Land
Reform, Malawi 2006. FSD2727.
114
Interview No. 25 with Ministry of Lands, Physical Planning and Surveys, Malawi 2006. FSD2727.
115
Malawi National Land Policy, supra note 110, para. 5.3.1.
116
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra note 98, at 209.
16
years to process and the Customary Land Bill, existing since 2010,117 had not yet been
adopted in 2012.
The human rights civil society in Malawi was not actively working on land-related policy
issues in 2006, despite the fact that land policy potentially has a considerable effect on food
rights. Olivier De Schutter, Special Rapporteur on the right to food, has pointed out that in the
context of increasing commercial pressure on land, it is essential from a human rights
perspective to improve the protection of livelihoods in rural areas by strengthening security of
tenure. However, he believes that an exclusive emphasis on individual titling, which is what
the Land Bill was proposing in Malawi, risks leading to the creation of land markets and
privatisation of common resources that are particularly vital for the most vulnerable members
of the communities.118 Case law concerning the right to property in Malawi has in fact
established that ownership of the beneficial interest in customary land is also protected –
contrary to the misconception that tenure in customary land is insecure.119
In Malawi maize is the staple food in most districts. People use maize meal to make porridge
(nsima) that is eaten every day in most households. For many people in the rural areas nsima
is food. Relish from vegetables, fish or meat is a supplement to nsima.120 Among educated
Malawians and expatriates you often hear diminishing expressions such as “Malawians are
spoiled, they want nsima three times a day and when the maize harvest is bad they complain
that they don’t have food even when rice would do the same job”.121 This and other similar
statements hint at the fact that rural Malawians can blame themselves for their food insecurity
problem because they simply do not value other staple foods such as rice, cassava, and sweet
potatoes. This is naturally not the case. However, decades of skewed policies aimed at
promoting white maize production have distorted production and consumption patterns, and
this has made Malawians vulnerable to chronic food deficits.122
Increased maize production has, since the 1960s been the main strategy for achieving the
objective of self-sufficiency in food production. As a consequence of this policy, maize
cropping has been introduced throughout the country and has become the dominant food crop
even in those areas that used to produce other crops. Agriculture extension workers have
largely focussed on promoting hybrid maize production and the use of fertilizers to the
neglect of other food crops and extension strategies. Small-holder land allocated to growing
maize increased from 58 percent in 1980/81 to 70 percent in 1990/91.123 Out of all
agricultural households 97 percent cultivated maize in Malawi in 2005.124 Over-reliance on
maize is a problem that is today recognised both by the government as well as by donors and
117
The Customary Land Bill is amended to the Report of the Law Commission on the Review of Land-Related
Laws, 9 April 2010.
118
Olivier De Schutter, “The Emerging Human Right to Land”, 12 International Community Law Review (2010)
303-334, at 323-324.
119
See Danwood Mzikenge Chirwa, “A Full Loaf is Better than Half: The Constitutional Protection of
Economic, Social and Cultural Rights in Malawi”, 49 Journal of African Law (2005) 207-241, at 222.
120
Civil Society Agriculture Network, “The People’s Voice!” A Community Consultation Report on Malawi
Food and Nutrition Security Policy Formulation Process, Lilongwe, Malawi, 2004, at 7. (The report is with the
author.) From my own group interviews it was also clear that producing enough maize to fulfil the consumption
needs of the family is what is considered important for food security.
121
Field diary, Malawi, 2006. Similar statements in Interview No. 30 with donor; Interview No. 15 with Church
and Society. FSD2727.
122
Stephen Devereux, “State of Disaster: Causes, Consequences & Policy Lessons from Malawi”, a report
commissioned by Action Aid Malawi, June 2002, at 6. Available at http://www.actionaid.org.uk/_
content/documents/malawifamine.pdf, visited 14 May 2012.
123
Msukwa, supra note 101, at 4 and 12-14.
124
Integrated Household Survey 2004-2005, supra note 92, at 96.
17
NGOs trying to improve food and nutrition security. Promoting alternative crops together
with diversification is, however, challenging due to decades of public information on the
importance of producing maize.125
Agricultural liberalisation measures have hit rural Malawi hard. Until the mid-1990s,
smallholder farmers enjoyed subsidies on fertilizers and hybrid maize seeds, but farmers in
the early 2000s worked in a very different policy environment. Before liberalisation farmers
could also access cheap credit and sell their produce at supported prices to the Agricultural
Development and Marketing Corporation (ADMARC). By 1996, fertilizer and hybrid maize
seed had been removed and agricultural markets had been liberalised. Smallholders faced
deteriorating terms of trade, volatile markets, and scarce credit.126 In the liberalised, non-
interventionist context, ‘bad’ maize production years became normal. Since the mid-1990s,
the only good years have been those when there have been large-scale interventions to boost
food production. Various such interventions have been implemented over the years by the
government and with the support of donors, known as the Starter Pack and the Targeted Input
Programme.127
The presidents that followed the one-party regime of President Kamuzu Banda (1966-
1993),128 Bakili Muluzi and Bingu wa Mutarika, implemented policies to remedy the previous
biases against smallholder agriculture.129 Following the election of Mutharika as President in
2004, the government decided to implement a radically different input programme, moving
towards a general (not targeted) subsidy.130 The President had publicly placed great
importance on the FISP as a key strategy of the country’s agricultural policy and is considered
the most influential actor in this context.131 In 2004/05 the government provided two million
smallholder farmers with packs of 25 kg of fertilizers, 5 kg of maize seed and 1 kg of
legumes, in addition to distributing vouchers for buying fertilizers to 500,000 smallholders.132
The voucher programme targeted economically active farmers who could afford to buy
subsidised fertilizers at 950 kwacha. During my stay in Malawi the FISP was a very topical
issue, and almost every day news papers raised issues of alleged corruption and
mismanagement. Due to these and other reasons donors have been reluctant to support
subsidies. They have, however, accepted targeted subsidies for the poorest farmers and in
2006 the EU, DFID and NORAD supported a seed component of the subsidy programme.133
125
Interview No. 3 with donor, Malawi, 2006; Interview No. 35 with international NGO, Malawi 2006.
FSD2727.
126
Sarah Levy, “Introduction”, in S. Levy (ed.), Starter Packs: A Strategy to Fight Hunger in Developing
Countries? Lessons from the Malawi Experience 1998-2003 (Cabi, 2005) 1-11, at 6.
127
Ibid., at 2 and 4.
128
Dr. Hastings Kamuzu Banda led Malawi (formerly Nyasaland) to independence. In 1970 he became Life
President. In 1993 he was forced to stand down, four years before his death. See chapter 3.1.
129
Klaus Droppelmann et al., “All Eggs in One Basket: A Reflection on Malawi’s Dependence on Agricultural
Growth Strategy”, International Food Policy Research Institute Discussion Paper, April 2012, at 16. Available at
http://www.ifpri.org/publication/all-eggs-one-basket, visited 1 September 2012.
130
Levy, “Introduction”, supra note 126, at 6. The Farm Input Subsidy Programme can be seen as President
Mutharika’s flagship programme, a programme that was implemented against fierce donor resistance. See
Blessings Chinsinga, “Can Subsidies Last in Malawi”, The Africa Report, 17 July 2012. Available at
http://www.theafricareport.com/index.php/soapbox/can-subsidies-last-in-malawi-501815522.html, visited 20
August 2012.
131
Noora-Lisa Aberman et al, “Mapping the Contemporary Fertilizer Policy Landscape in Malawi”,
International Food Policy Research Institute Discussion Paper, August 2012, at 12. Available at http://www.ifpri.
org/publication/mapping-contemporary-fertilizer-policy-landscape-malawi, visited 10 September 2012.
132
Levy, “Introduction”, supra note 126, at 6.
133
Interview No. 23 with Ministry of Agriculture, Malawi 2006. FSD2727. All donors interviewed were careful
to underline that their support to the subsidy program is designed in a manner to stimulate the private sector. E.g.
Interview No. 3 with donor, Malawi 2006. Since 2006, the government used private sector agricultural dealers as
18
Needless to say, the subsidy programme is hugely popular in Malawi.134 The country has
experienced an increase in national maize production in the period of 2006-2010, moving
from chronic food deficits to the point of exporting maize to neighbouring countries.135
In 2012, following the sudden death of President Mutharika, one of the key questions being
asked is whether the change in government will also bring changes to the major policies such
as the FISP. The new head of state, Joyce Banda, who was Mutharika’s vice president, has
already expressed commitment to the continuation of the programme. Analysts do not see this
as surprising, considering that Malawi’s agricultural production depends on some form of
subsidy to smallholder farmers. Blessings Chinsinga writes that “subsidies have become more
or less an integral part of the social contract between the government and citizens.” Maize
subsidies are at the core of Malawi’s politics.136
The year 2012 is a challenging year in terms of food security in Malawi. The Malawi
Vulnerability Assessment Committee (MVAC) reports that more than 1.6 million people will
need food assistance. As many as 15 out of 28 districts are affected by dry spells and
deteriorating food security. The recent devaluation of the national currency by 49 percent,
together with a high inflation, has produced sharp increases in food prices and living costs.137
This is the context in which the three projects to be analysed operate: a country that suffers
from chronic food insecurity and deep structural problems that create hunger.
1.6 Data and method
1.6.1 Research strategy: Analysis of three approaches
This study applies qualitative social science methodology. The goal is the same as in
empirical social science in general: to explain and understand observed social phenomena.
The aim is to understand the meanings, processes, and context138 in which human rights and
development are integrated; to explain the role of human rights and human rights principles
within these contexts; and to identify what is characteristic of ‘good development practice’,
human rights-based approaches as well as legal approaches to development.
In part III, the objects of enquiry are three food security projects in Malawi and the aim is to
understand and explain the role of human rights and human rights principles within these
projects, and to identify what are the characteristics of charity-based, rights-based and legal
approaches. It is also important to understand the processes and contexts in which they
operate. The analysis of the three food-related projects in Malawi takes place in a specific
locality, context, and timeframe, and this cannot be disregarded. For instance it is of relevance
to be familiar with the history of the human rights movement in Malawi, especially during the
transition from an authoritarian regime to a multiparty form of government, in order to
well as state-owned outlets for distribution of fertilizers and seeds. See DFID, “A Record Harvest in Malawi”, 8
May 2007. Available at http://www.dfid.gov.uk/casestudies/files/africa%5Cmalawi-harvest.asp, visited 14 May
2012.
134
The New York Times, “Ending Famine, Simply by Ignoring Experts”, 2 December 2007, available at
http://www.nytimes.com/2007/12/02/world/africa/02malawi.html?scp=1&sq=Ending+Famine&st=nyt., visited 8
May 2012. Similar statements in Interview No. 23 with Ministry of Agriculture, Malawi 2006. FSD2727.
135
Droppelmann et al., “All Eggs in One Basket”, supra note 129, at 16.
136
Chinsinga, “Can Subsidies Last in Malawi”, supra note 130.
137
WFP News: “WFP Gears Up Food Relief for Thousands in Malawi”, 13 July 2012. Available at
http://www.wfp.org/news/news-release/wfp-gears-food-relief-thousands-malawi, visited 27 August 2012.
138
Todd Landman, Studying Human Rights (London: Routledge, 2006), at 3 and 72.
19
understand the role human rights play in society today. Naturally, it is also important to know
the food security challenges that Malawi is facing. The thesis tries to capture the rationale for
choosing a specific approach to intervene in food insecurity and the role human rights play in
this picture.139 The study does not, however, attempt to give an over-arching analysis of the
cause-and-effect processes of food insecurity in Malawi in general or to evaluate the
effectiveness and effects of the programmes.140
The strategy for providing an answer to the main research questions about the role and added
value of human rights in food security efforts is an analysis of three food-related projects.
This strategy is empirical in the sense that evidence about what is taking place in these three
projects is collected.141 The analysis provides in-depth knowledge of the three cases studies
and therefore I have no ambition to draw generalized conclusions based on the data acquired
in the field. However, the data may provide theoretical insights, in this case related to the
assumptions made before embarking on the field research, which help in understanding the
role of human rights in development on a general level.142 Data for the analysis has been
collected through semi-structured individual interviews and group interviews conducted at the
end of 2006. In addition to analysis of the interviews carried out during the field research,
policy documents as well as other written material concerning the programmes are critically
reviewed. Due to the difficulty of obtaining written material from Malawi after the end of the
field research the study only gives a superficial follow-up of the projects.
The three food-related interventions in Malawi represent different approaches to development
and food security: (1) supporting food security through food-for-asset (representing charity-
based approaches); (2) supporting food security through demanding accountable services
from duty-bearers as a matter of rights (representing rights-based approaches); (3) supporting
legislation on the human right to food (representing legal human rights approaches). The
assumption is that human rights play a role in all of these approaches, but what that role is
differs and so do the interpretations of the so called human rights principles. The point in
making such a comparison is not to play these approaches against each other (‘charity/needs
vs. rights’) but instead highlighting that if and when needs are seen as a matter of fulfilling
human rights (‘needs as rights’) this has certain implications. The process should look
different if needs are dealt with as an human rights issue compared to cases where fulfilling
needs is seen as ‘charity’ or a ‘favour’.
The first object of inquiry is the food-for-asset component of the food assistance programme
called the Joint Emergency Food Aid Programme (JEFAP) by the World Food Programme
(WFP) and its NGO partners. What is characteristic of this approach is that service delivery
(food commodities distributed in exchange of asset creation) is based on targeting needs, and
the delivery of the assistance is based on charity rather than entitlements. The aim is to
identify the rationale behind distributing food assistance, and the principles according to
which programmes are managed, not to evaluate the effectiveness in reaching the intended
beneficiaries.
139
Compare with “General Introduction: Context and Challenges for Combining Methods in Development
Research”, in Jeremy Holland with John Campbell (eds), Methods in Development Research: Combining
Qualitative and Quantitative Approaches (United Kingdom: Centre for Development Studies, 2005) 1-18 at 3.
140
Evaluation research typically intends to assess the effects and effectiveness of something, for example a
policy or service, applying qualitative or quantitative methods. See Colin Robson, Real World Research (UK,
Blackwell Publishing, second edition 2002) at 202.
141
Ibid., at 179.
142
Robson, Real World Research, supra note 140, at 177 and 183. See also David Silverman, Doing Qualitative
Research (London: Sage Publications, Second edition, 2005) at 126-127.
20
The second programme that is analysed is Shire Highlands Sustainable Livelihoods
Programme (SHSLP) implemented by Oxfam and local government institutions. It is seen as
representing ‘rights-based approaches’ because it makes more inspirational use of human
rights than a normatively-based human rights approach. Integrating a rights-based approach,
which started in 1999, has according to Oxfam, meant working at the institutional level to
“stimulate the supply of rights and services” and at the community level to “generate
awareness of and demand for these rights and services”,143 but without linking this language
to international human rights instruments. My aim is to identify challenges in applying
‘rights-talk’, i.e. demanding accountable and transparent services as a matter of rights and
obligations, not as a favour, in a very resource-constrained environment.
The third project chosen for the analysis is the Right to Food Project implemented by Church
and Society together with a loose network of other civil society organisations. The project is
seen to represent a ‘legal human rights approach’ since its main focus is on putting legislation
in place that will guarantee duty-bearer responsibility and avenues for accountability.
Through analysing the project, it is possible to study the possible added value, and the
challenges facing this kind of a normative approach; an approach that is strongly rooted in the
international human rights framework.
Malawi was chosen because of its prevalent food security problems and because I was
familiar with the policy framework in the country from previous research on the human
rights-based approach to development in the context of food security and HIV/AIDS.144 There
are many benefits in having all three case studies in the same country. In addition to logistical
and practical benefits in carrying out field research, it also meant that all three projects
functioned in the same political, social, economic, and legislative environment. However, the
three projects chosen for the analysis are very different in terms of number of beneficiaries
and staff members, budget, and not the least in terms of the assumed importance given to
human rights. They also operate on different levels of society: while the Right to Food Project
lobbies on behalf of national legislation, operating on the national level in a political
environment, the two other projects operate on the district and local levels. There are different
external factors inhibiting the projects and this is taken into account in the analysis.
It is clear that the projects cannot be compared with each other – and I analyse the three
projects for different reasons. I deliberately choose projects that have a varied approach to
food security, and it was a conscious choice that only one of the projects claims to apply a so
called rights-based approach to development. I assumed that through analysing one food
assistance project that represents a ‘conventional’ approach to hunger it would be possible to
determine if there is any difference in how certain principles, common to ‘good development
practice’ and human rights, are applied in this approach compared with the other two projects
that both claim to apply these same principles. The purpose of the analysis of the food
assistance project is to have a starting point, or baseline, of what is the role of human rights in
a conventional charity-based approach. It is argued that it is impossible to know whether new
ways of doing ‘development’ has any transformative effects before one is familiar with the
situation that proceeded the rights-based and human rights-based approaches. Moreover, food
assistance has traditionally played an important role in Malawi and it is still distributed every
year. Since WFP is an important actor in Malawi the JEFAP programme was chosen.
Naturally, it also played an important role that it was possible to reach WFP staff before the
143
Oxfam, “Integrating Rights into Livelihoods Programme: A Case Study of Shire Highlands Sustainable
Livelihoods Programme”, Malawi (project document that is with the author).
144
Alessandra Lundström Sarelin, “Human Rights-Based Approaches to Development Cooperation, HIV/AIDS,
and Food Security” 29 Human Rights Quarterly (2007) 460-488.
21
field research and that they agreed to meet me in Lilongwe during the first days of my stay in
Malawi.
At first I thought that analysing a ‘conventional’ food aid project and a livelihoods project that
identifies itself as rights-based would already provide me with some answers about the role of
human rights and so called human rights principles in these two different approaches.
However, when I saw a small article about the Right to Food Project in Malawi in a document
published by FIAN145 the idea to have a third project that is implemented by human rights
NGOs instead of developmental organisations was conceived. In this way the analysis would
also be able to see possible differences in the two discourses of development and human
rights, which traditionally have been operating side by side with hardly any cooperation, at
least in Malawi. Although I had little information about the Right to Food Project before
going to Malawi I decided to take a risk and try to set up a sufficient number of interviews
with project stakeholders. Church and Society, that heads the Right to Food Project, agreed to
be part of the analysis.
1.6.2 Data collection: Semi-structured individual interviews and group interviews
A field research trip to Malawi was conducted in November-December 2006 to gather data
for the analysis. During the field visit I was affiliated with the Centre for Social Research at
the University of Malawi. The method for data collection was semi-structured interviews,
combined with group interviews. Semi-structured interviews means that I used an interview
guide146 with some predetermined questions and areas to cover, but during the interview I also
raised new questions while omitting others because of lack of time or because they seemed
inappropriate with a particular informant.147 In semi-structured interviews it is common to
incorporate more highly structured sequences (e.g. to obtain factual biographical material) but
since such personal data plays no role in my research there was no need for this.148 Moreover,
I wanted to underline the importance of dialogue and encourage the informants to elaborate
on their views. In preparing for the interviews I benefited from Steinar Kvales extensive work
on both the theoretical as well as practical aspects of qualitative interviews.149 My interview
guide included firstly some introductory comments, covering the purpose of my research in
general and the interview in particular and secondly a list of topics and key questions to ask
under each project.150 Questions directed to people involved in all three projects focused on
the rationale for the approach chosen in the particular project, and how human rights fit or do
not fit into this rationale. The meaning of the concepts non-discrimination and focus on
vulnerable groups, participation, accountability and empowerment was raised in the majority
of the interviews. In addition to the common set of questions, project-specific questions were
also raised. At the end of the interview I indicated that I had no further questions and gave the
informant the opportunity to raise any issues he or she had been thinking about.
145
Carole Samdup, “Promoting the Human Right to Food in Malawi” in Voluntary Guidelines on the Right to
Adequate Food: From Negotiation to Implementation, FIAN-Documents g47e/2006, at 15. Available at
http://www.sarpn.org/documents/d0002164/FIAN_right_to_food_2006.pdf, visited 14 May 2012.
146
Robson uses the concept “interview schedule” for the semi-structured interview but “guide” is more
appropriate for my purposes as the aim of the predetermined questions was not to determine the timing or
sequencing of the questions but rather to set the general framework of topics of be covered in the conversation.
147
Robson, Real World Research, supra note 140, at 270. See also Britha Mikkelsen, Methods for Development
Work and Research (New Delhi: Sage Publications, second edition, 2005) at 169 and 171.
148
Robson, Real World Research, supra note 140, at 278.
149
See Steinar Kvale, InterViews: An Introduction to Qualitative Research Interviewing (California: Sage,
1996).
150
Compare with Robson, Real World Research, supra note 140, at 278.
22
I conducted 34 interviews with project personnel, government representatives, NGO staff,
donors, and other relevant project stakeholders. Altogether 47 informants were interviewed.
The majority of semi-structured interviews were on an individual basis but on a few occasions
two or three people participated.151 Individual interviews lasted about 45 minutes, while group
interviews with two or three people took over one hour. The group interviews with rights-
holders lasted one to two hours, depending on the number of people participating. The
language spoken in the group interviews was Chichewa, and I used an interpreter. All other
interviews were in English. Notes were taken during and after every interview and
observations were written down in a field diary. This was also useful as sometimes informants
shared useful information after the tape recorder had been turned off.
The majority of the informants were men – only 15 informants were women. This gender
imbalance is due to the fact that most government officers and NGO staff members are men.
The greatest gender imbalance was in interviews for the analysis of the Right to Food Project.
All individual interviews were with men and it was only in one group interview that I had the
chance to talk to (three) women.
Four group interviews with beneficiaries or rights-holders were organised. The discussion in
these settings was not focused on only one particular topic and therefore it was not a focus
group. Focus groups are group discussions with the purpose of addressing and exploring a
specific topic in detail, e.g. people’s views and experiences of contraception.152 Moreover,
focus groups are distinguished from the broader category of group interviews through
explicitly using group interaction as research data.153 It is also typical for focus groups that
people participating are more or less homogenous, e.g. a group of widows, although opinions
on this vary and heterogeneous groups are also used.154 In my group interviews, the
discussion covered a broad area and it was directed partly by my questions and partly by the
interests of the participants. In the analysis of the data obtained from the participants. I do
take group interaction and internal power relations into account but the study of these factors
was not the main purpose of the interview.
In group interviews participants may be invited, i.e., sampled, or random in the way that
participants are those who happen to be around at the time of the interview.155 In my case I
did not have any influence over the selection of participants in the group interviews. This can
be seen as a challenge from the point of view of wanting to ensure an equal representation by
all groupings in the village, including so called vulnerable groups such as widows, people
living with HIV/AIDS and people with disabilities. On the other hand, random selection can
have benefits in terms of excluding possible researcher bias. Two groups interviews were
organised when visiting the SHSLP and the other two (separate for men and women) were
held as part of the analysis of the Right to Food Project. The first two groups were mixed in
the sense that people participating came from diverse backgrounds. The group interviews in
which men and women were interviewed separately were more in the style of focus groups, as
all participants were members of Church and Society in the Mulanje District. However, in this
case the participants also came from diverse social backgrounds. Due to practical challenges it
151
The typical interview is one-to-one and face-to-face, but it can take place in a group setting. Robson, Real
World Research, supra note 140, at 270.
152
Mikkelsen, Methods for Development, supra note 147, at 173; Jenny Kitzinger, “The Methodology of Focus
Groups: The Importance of Interaction Between Research Participants”, in A. Bryman & R.G. Burgess (eds),
Qualitative Research, Volume II (London: Sage Publications, 1999) at 138-155, at 138.
153
Kitzinger, “The Methodology of Focus Groups”, supra note 152, at 138.
154
Robson discusses the benefits of homogenous and heterogeneous groups, see Real World Research, supra
note 140, at 286.
155
Mikkelsen, Methods for Development, supra note 147, at 172.
23
was not possible to organise an interview with beneficiaries of the food-for-asset component
of JEFAP. Instead, questions concerning food assistance were raised with participants in the
other groups.
The first group interview with rights-holders was held in a village in the Mulanje District.
People in the villages usually work in their fields in the morning so I was advised by Oxfam
to visit the village in the afternoon. Oxfam had informed the village about my visit. I arrived
together with one officer from the Community Development office and one staff member of
the human rights NGO Malawi CARER (Centre for Advice, Research, and Education on
Rights), who also acted as my interpreter. As we arrived we were greeted by the village
headman. He showed us into a brick house that is used for adult literacy classes and other
common activities for the villagers. Inside the house I met a group of about ten men and
women.156 I shook hands with everyone. Then the village headman said a word of welcome in
Chichewa, to thank everyone for attending. After this there was a short prayer. Then it was
my turn to explain why I had arrived and what I wanted to talk about, i.e., express my interest
in learning about the structures in the village, the outside support from government
institutions and NGOs, the on-going development activities and the challenges villagers are
facing. I also raised some questions about rights as I knew that the Malawi CARER had been
educating villagers on rights issues. The village headman was the first to talk and answer my
questions. While he was talking the others did not participate in the discussion. When I raised
a question about the Village Development Committee a male member of the committee
replied. From this point the others in the room also participated in the discussion. A young
woman from the Village Rights Committee was active in giving replies and she also
explained about the activities of this committee.
The set-up for this discussion with the rights-holders had a number of weaknesses. First of all
it is clear that it was mostly the village headman and people with a position within an elected
body who were talking. This is a typical problem in group interviews and focus groups. The
benefit, on the other hand, is that participants tend to provide checks and balances on each
other, i.e. there is a kind of natural quality control.157 However, I cannot claim to have the
view of, for instance, vulnerable groups. Secondly, the presence of the officer from
Community Development and Malawi Carer, both of which are partners in the Shire
Highlands programme, might have made people prone to speak only favourably of the
programme activities. It is naturally impossible to make sure people were being honest and
not only saying what they thought I wanted to hear. This is a general human tendency and
anyone, no matter how powerful or powerless, has been in a situation where he or she is
trying to assess what the person asking questions really wants to hear. Statements such as
“gender balance is important”, and the use of development buzz words such as “capacity
building” made me careful when drawing conclusions based on this group interview. Thirdly,
it is difficult to assess the accuracy of the translation from Chichewa to English and from
English to Chichewa. These concepts might be the choice of the interpreter rather than the
informant. The ideal situation is to have a professional outside interpreter but due to practical
challenges such as time constraints, long distances and a limited local network (as this was in
the beginning of my field trip) this was not possible.
The second group interview was the following afternoon in a village in the Thyolo District.
When I arrived together with two staff members from Development Broadcasting Unit (DBU)
that coordinates the Radio Listening Club in the village, a crowd of 10-15 villagers greeted us
156
Opinions on the optimum size of the group vary but figures of eight to twelve are usually held suitable.
Robson, Real World Research, supra note 140, at 285.
157
Robson, Real World Research, supra note 140, at 284.
24
with singing and dancing. They wanted to share the song that they use in the radio
programmes they make. The atmosphere was full of pride for the village and the common
activities, especially the Radio Listening Club that currently was making a programme about
the misuse of fertilizer coupons. The villagers were very well prepared for my visit and my
impression was that this was not the first time they received visitors from foreign countries.
The man from the DBU interpreted. Again a strict protocol was followed during the opening
of the discussion. The difference here was that while the headman of the previous village
played an active role in the opening ceremony, this time all three village heads (two men and
one woman) were sitting at the other side of the room and not taking active part in the
discussion until later. After the praying and all the opening statements and introductions there
was a short play about farming and the challenges faced by farmers performed by a small
group of women and men. Then elected members from the Village Development Committee,
the Village Rights Committee and the Radio Listening Club explained about the work these
committees carry out in the village. After these general introductions I had the opportunity to
direct specific questions to individuals from the committees and the village headmen. At one
point I also indicated I would like to have an answer from everyone in the room. Towards the
end of the session I encouraged the villagers to ask question of me and we concluded by
comparing farming in Finland and Malawi.
The weaknesses in this second group interview are the same as in the first: not having an
outside interpreter, not being sure that the presence of village headmen is not intimidating
others and the difficulty to get all the people to participate in the discussion. My impression
was, however, that the statements made were honest and frank and people were not trying to
give a too rosy picture of the Shire Highlands Programme or the Radio Listening Club. Many
women were also active in the discussion but the problems raised were not as gender specific
as was the case in the forth group interview that was for women only. A common challenge in
all four group interviews was to clearly communicate to the participants that I was not
representing a donor or any development agency and that I was not in a position to decide
about funds or the future of the programme. Being a white, European, academic woman
visiting a village for a short while naturally effects the information shared with me. It would
be naïve not to see that people were hoping to obtain some benefits from my visit and
therefore also trying to please me as much as possible. The research interview was in this case
not a conversation between two equal partners.158
The third and forth group interviews took place at Mulanje Mission with members of a local
branch of Church and Society. It transpired to be a good decision to have separate interviews
with men and women. Although this was a much smaller group interview than the previous
two and the people interviewed were not direct ‘beneficiaries’ of the Right to Food Project it
can still be argued that they, as local members of Church and Society, represent ‘rights-
holders’. It should also be noted that the Right to Food Project does not have any direct
beneficiaries and this was as close as I could come to talking to people who were not staff
members from NGOs involved in the project. The discussion was useful as it revealed the
limited role of local activists in the Right to Food Project. At the same time, I had the chance
to take up food security issues such as fertilizer coupons, land policy, food assistance, the role
of local duty-bearers and power structures in villages with people who were in a considerably
less privileged position than NGO staff. The fact that these people all lived in Mulanje, where
Oxfam’s Shire Highlands programme was implemented made the discussions even more
relevant as this gave me additional information about the specific challenges in the
programme area.
158
Kvale, InterViews, supra note 149, at 6.
25
When the interview started it was only me with two men from the Church and Society Board.
Ten minutes later a third person, who happened to be part of the local elite, joined us. It was
noticeable how the other two men became silent as the third man started talking in English
instead of Chichewa. My driver was interpreting when the discussion switched back to
Chichewa again. It soon became clear that none of the men had much information about the
Right to Food Project and the atmosphere was a bit tense as it seemed it was embarrassing for
them to admit they had no idea what I was asking about. The atmosphere improved again as I
started asking about other Church and Society activities in Mulanje and general food security
problems. For example, they showed me civic education material about human rights that
Church and Society had used when conducting rights training with members of the Church.
This was useful as I could see rights issues were taken up also outside Church and Society’s
main office in Blantyre.
During the discussion with three female members of Church and Society I was given an
insight into these women’s lives. The atmosphere was intimate and open. The presence of my
male driver, who interpreted, did not seem to prevent these women from sharing stories with
me. I heard about everything from violence against women in the families to how young
orphan girls working on the tea plantations sell sex to male employees. The women told me
how they work in the fields, how they get advice from extension workers and struggle to get
coupons to buy subsidized fertilizer, knowing that most of the coupons go into ‘deeper
pockets’. The loud laughter following my question if there is anything they can do about
corruption revealed what they thought of this a naïve question. Some of the women had also
received goats and seed from NGOs and their opinion was that assistance coming from NGOs
works better than from village chiefs. At the same time the women tried their best to help
orphans in the area, taking care of them with food, soap, and blankets, even taking them to
school. The trusting and intimate atmosphere in which all three women felt comfortable to
express their views made it the most useful group interview in providing information about
the overall context and challenges concerning food security and human rights in Mulanje.
When studying multiple cases it is crucial to set the boundaries of the study, i.e., to define
aspects of the cases that are feasible to study within the time and means at hand. The question
of who to interview (sampling) can have a considerable impact on later analysis. Qualitative
researchers usually focus on a small sample of people compared to quantitative researchers
who aim for larger numbers and seek statistical significance. Qualitative samples also often
have more purpose than being merely random.159 I set the boundaries of the case studies early
on as I decided not to study every aspect of the programme but instead focus on the particular
area that related to human rights issues. The boundaries for each project were a little different
because the assumed role of human rights was different. For example, in the SHSLP I was not
interested in learning about the seed component of the programme but instead I focussed on
how rights issues have been integrated into the programme through rights training, radio
listening clubs, and cooperation with the Labour Office and the trade union. This also helped
to narrow down the people to interview.
In JEFAP my focus was broader and more general as I was not sure what the role of human
rights would be but after my initial interviews I made the choice to narrow my focus down to
the food-for-asset aspect of the overall programme. This choice was based on the perception
that principles non-discrimination, participation, empowerment and accountability play a
larger role in this context compared to schemes in which food given as direct assistance.
159
Matthew B. Miles and A. Micheal Huberman, Qualitative Data Analysis (London: Sage Publications, 1994,
second edition), at 27.
26
With regard to the Right to Food Project, which is much smaller in scope, and focuses purely
on the right to food, the question of setting boundaries was not a significant issue. The
ambition was to interview as many relevant stakeholders of the project as possible, but being
aware that it is not possible to cover everyone and some kind of selection had to be made.
This selection was more or less random in that it was the circumstances (e.g. who picked up
the phone that moment I called to set up the interview) that dictated the final selection rather
than a detailed list of people to be interviewed that had been prepared well in advance. (This
also holds true for the other projects as well.) Time constraint and conditions in Malawi did
not permit the following of any detailed plan but instead the situation was lived each day.
After each interview I considered who else should be interviewed in order to cover different
aspects of the programme and to avoid bias.
The Right to Food Project had a rather ‘elite approach’, with limited input from ‘the
grassroots’, and this is reflected in those individuals I interviewed (mostly male leaders of
NGOs). The aim was to obtain an overview of the characteristics of settings and processes
within the programme. This means the people themselves were secondary.160 In fact, I did not
know anything about the people to be interviewed in advance of the interview and he or she
was selected based on his/her role in the programme, not their personal capacity. In addition
to interviewing representatives of stakeholders to the projects, I also decided to speak to
people who were familiar with either the projects or had insight into the substantial issues that
I was trying to learn about, i.e. food security challenges, land policy, the human rights
movement in Malawi, NGOs trying to work with a rights-based approach, etc. This proved to
be a good opportunity not only to learn about the context in which the projects operate in
Malawi but also to get contrasting and comparative information about the phenomenon of
rights-based approaches in Malawi. For example, I have learned to be much more critical of
NGO, donor and government reports. Moreover, talking “with people who are not central to
the phenomenon but who are neighbors to it” can help in ‘de-centring’ oneself from a
particular way of viewing the cases.161
1.6.3 Ethical issues
During any research process ethical issues will arise. In field research, the issue of how to
approach the informants and what kind of information about the overall research project to
supply is constantly on the researcher’s mind. In order to be certain about having the informed
consent and voluntary participation of the informants it is first of all necessary to inform the
research subjects about the overall purpose of the research. Secondly, any possible risks and
benefits from participating in the interview should be raised.162 Depending somewhat on the
interview setting I devoted more or less time to explaining the purpose of my research in
general and why I had chosen to study the three programmes in Malawi in particular. I did
this already when approaching the informant for the first time by phone and then in more
detail before the start of the actual interview. When approaching the three implementing
organisations WFP, Oxfam and Church and Society through e-mail before going to Malawi I
also sent my research plan so that the overall aim of the research would be clear from the
beginning. In the case of the present research, I failed to see any risks with participation from
the perspective of the individual informant and therefore the issue was not raised when
approaching them. For the three implementing organisations WFP, Oxfam, and Church and
Society there is naturally the risk of being criticised. A potential benefit is, on the other hand,
160
See Miles and Huberman, Qualitative Data Analysis, supra note 159, at 33.
161
Ibid., at 34.
162
Kvale, InterViews, supra note 149, at 112.
27
to obtain an outsider’s analysis of the programme that can be used in internal policy
development.
A second ethical issue is that of confidentiality, which implies that private data identifying the
informants will not be reported.163 With permission, interviews were recorded on tape after
handing over a statement guaranteeing the anonymity of the informant. I explained that I
would use interview numbers instead of names when referring to interview data. On two
occasions consent to use a tape recorder was not given and then I relied on writing notes.
When reporting on the results I have chosen to indicate if the informant represents civil
society, the government or a donor. With regard to interviews with the three implementing
organisations I use their names in my reporting. I also indicate which government department
has been interviewed. In some cases I only refer to the anonymous ‘NGO’ or ‘donor’. The
nature of the information given in the interviews is not as such sensitive or personal but as the
number of NGOs and donors is so limited in Malawi it would in theory be possible to identify
the name behind a specific statement, therefore, this was the only way to guarantee
confidentiality. When interviewing donors some information concerning the relationship
between the donor and Malawi Government arose that can be regarded as sensitive and in this
case the informant specifically asked that I would not report this piece of information. During
group interviews with rights-holders sensitive issues such as power relationships and
corruption often occurred , and I have also reported on that, but in this case there is no way to
find out the identity of the informants.
1.6.4 Analysis of interview data
All tape recorded interviews have been transcribed. The quality of the recording varies;
sometimes there is heavy rain on a tin roof, sometimes the informant’s speech is unclear and
this has made the full transcription difficult. Altogether I have more than 200 pages of
interview data, which is still a manageable quantity for the purpose of analysis. Analysis of
the interview data started already in the field as I had the habit of listening to every interview
the same evening as the interview took place, and writing a short summary in my field
research diary. Below is an example of what a summary could look like.
1993-94: Malawi went through a transition but not transformation
Dualist legal system, but duties not taken all the way: legal challenges for
implementing the right to food
Other challenges on the community level, still fear to talk of rights and demand
accountability
Duty-bearers blank in terms of seeing their work in a rights context
Influx of human rights NGOs around 1994, but a lot of missed opportunities.
Preaching the language of rights but no integration them into people’s livelihoods.
Rights need to be integrated into the official documents of the service providers
Reason for RBA: development agencies see that development projects are not
sustainable
Accountability not taken all the way up (CARE), work with health centres but do
not go to the district or central level
NICE project has changed its approach this year from education on rights to
“walking all the way” with communities seeking for remedies, taking different
issues all the way, to central government if necessary.164
163
Kvale, InterViews, supra note 149, at 114.
164
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
28
Through using this diary I was able to write down observations that were useful for the
analysis and when developing questions to be raised in up-coming interviews.
I use the empirical data to understand how the actors in Malawi give meaning to concepts
such as human rights, participation, discrimination, accountability, and other key concepts and
principles used in development and human rights work. This is a constructivist view.165 I also
make some generalisations to show trends within the broad phenomenon of interaction
between human rights and development in the field of food security. In this context, I use my
own interpretations. As interpretation requires at least some key concepts to guide the
selection of relevant information,166 I have chosen to focus on concepts that are characteristic
of human rights-based approaches (HRBAs).
When analyzing qualitative data, the researcher has to move, in the interpretative analysis,
between theory and empirical social facts in a way that often reshapes the theoretical ideas as
well as her view of the empirical data.167 In my case I started with an assumption about the
role and added value of human rights in food security, then I collected my data, and as I
started to analyse and interpret the data I also started to formulate some theoretical ideas.
There has been a constant interplay between theoretical ideas (explanations) and empirical
data.
When I started the transcribing process I had the habit of highlighting interesting passages and
sentences. I did the writing of the first draft analysis parallel with transcribing. Before writing
the conclusions I read through all relevant interviews again and highlighted relevant words
and sentences. In the interviews, I have been looking for statements that support and/or
question my assumptions about the role and added value of human rights in food security
efforts. I have also focussed on how the informants give substance and meaning to the five so
called key principles of a human rights-based approach to development. When writing the
analysis I let the data speak for itself through using quotations. The contact persons from the
three organisations have been given the opportunity to comment on the draft analysis before it
was presented at any academic seminar.
In social research method text books, a long list of different approaches to analysis of
qualitative data are usually identified and described. What analytical approach is chosen by
the researcher depends on the purpose of the analysis. A key issue is to be explicit about the
chosen method of analysis when reporting on the results. It is also important that the
researcher is conscious of how qualitative data can be interpreted differently and that
interviews will always contain an element of interpretation.168 As noted, the possible
approaches to analysis are diverse but there are, however, recurring features such as coding
the data; adding comments and reflections; going through the materials trying to identify
similar phrases, patterns, themes, relationships, etc; gradually elaborating a small set of
generalizations that cover the consistencies in the data; and linking these generalizations to a
formalized body of knowledge in the form of theories.169 The overall aim is to look for
meanings and understanding. There are no strict formulas for analysing qualitative data as is
the case with analysing quantitative data – but this does not mean that there are no guidelines
165
See Klotz and Lynch, Strategies for Research, supra note 1.
166
Klotz and Lynch, Strategies for Research, supra note 1, at 21.
167
Allaine Cerwonka, “Nervous Conditions”, in Allaine Cerwonka & Liisa H. Malkki, Improvising Theory:
Process and Temporality in Ethnographic Fieldwork (Chicago: The University of Chicago Press, 2007) 1-40, at
15.
168
Mikkelsen, Methods for Development, supra note 147, at 180.
169
Robson, Real World Research, supra note 140, at 459.
29
to assist in qualitative analysis.170 Constructive advice can be found in e.g. Miles and
Huberman, who advocate a systematic approach to qualitative analysis,171 and in Kvale’s
writings on what methods can be used to organise the interview texts.172
For the purpose of the analysis of the interview data from Malawi I have found that coding is
the most useful approach. Coding of qualitative data means organising the raw data into
conceptual categories and creating themes or concepts, which are later used to analyse data.173
The themes and concepts I use are based on my assumptions and research questions.174 I
categorised data under the following headings: express linkage to rights, non-discrimination
and focus on vulnerable groups, participation, empowerment, accountability, self-reliance,
charity/favour, politics, policy issues, service providers, duty-bearers, rights-holders, and
power structures. These labels are then attached to phrases, sentences, or whole paragraphs in
my interview data. Codes are used to retrieve and organise data so that I can quickly find,
retrieve, and cluster the segments relating to a particular research question, assumption, or
theme.175
In order to display the interview data in an organised fashion I placed sentences that have
been coded into charts before drawing final conclusions.176 This functioned as a verification
process, testing the validity and reliability of my conclusions. When displaying data in a chart
it was easier to confirm if an explanation is plausible and if I have sufficient evidence to
support it.177
1.6.5 The question of validity in analysis of qualitative data
A common challenge in qualitative social research is how to assess whether the conclusions in
a study that are based on qualitative evidence are valid, i.e., are the findings meaningful,
relevant, ‘true’?178 This is an epistemological question: what can we know, and how do we
know what we know? There are, of course, different epistemological positions.179 Qualitative
methods are sometimes dismissed as unscientific, subjective, unreliable, and invalid. This is
especially the case when qualitative methods in general and qualitative data analysis in
particular are judged against common criteria of validity, as developed for psychometric tests.
In positivist social science, validity is based on whether a method measures what it is
intended to measure.180 According to Kvale, it is clear that “[i]f the concept of validity is
confined to quantitative measurements, then research, aiming at qualitative descriptions and
interpretations of meaning, is by definition not a valid scientific method.”181 However,
qualitative methods may achieve a valid scientific practice when validity is seen as a broader
concept, implying to what extent a method investigates what it is intended to investigate, i.e.,
170
Mikkelsen, Methods for Development, supra note 147, at 181.
171
Miles and Huberman, Qualitative Data Analysis, supra note 159.
172
Kvale, InterViews, supra note 149.
173
Mikkelsen, Methods for Development, supra note 147, at 181.
174
As recommended in Miles and Huberman, Qualitative Data Analysis, supra note 159, at 58.
175
Miles and Huberman, Qualitative Data Analysis, supra note 159, at 56-57.
176
Ibid., at 91 and 93.
177
See Robson, Real World Research, supra note 140, at 476.
178
Klaus Bruhn Jensen, “Discourses of Interviewing: Validating Qualitative Research Findings Through Textual
Analysis”, in S. Kvale (ed.), Issues of Validity in Qualitative Research (Lund: Studentlitteratur, 1989) 93-108, at
93.
179
Mats Hårsmar Understanding Poverty in Africa? A Navigation through Disputed Concepts, Data and
Terrains (Uppsala: Nordiska Afrikainstitutet, 2010) at 9.
180
Steiner Kvale, “To Validate is to Question” in S. Kvale (ed.), Issues of Validity in Qualitative Research
(Lund: Studentlitteratur, 1989) 73-92, at 73-74.
181
Ibid., at 74.
30
to what extent our observations reflect the phenomena of interest to the researcher. Qualitative
research has then the power to reflect and conceptualise the nature of the phenomena
investigated and can capture the complexity of the social reality.182
When discussing what is valid, true knowledge in social science one inevitably runs into the
philosophical question of what truth is.183 Social science is concerned with social reality that
is constructed through people’s opinions, experiences and judgments. The interview data I
analyse represent the subjective opinions, reflections, and views of the informants in question,
and therefore it is not possible to find one objective truth behind the data. Instead of one
‘absolute truth’ there are multiple subjective narratives of what is taking place in the three
food security projects in Malawi. The interview conversation is able to capture the multitude
of views on a theme.184
Hermeneutics deal with interpretation of social meaning – as opposed to naturalistic research
methods searching for casual laws through the gathering of data by observation and
experiment.185 An interpretative process of knowledge production has always existed in the
social sciences and humanities, so this is not a new phenomenon.186 However, hermeneutics
does not always apply the same notion of ‘truth’ as the naturalistic position, that views truth
as corresponding to reality. Moreover, hermeneutics claims that scientific inquiry is always
interpretative.187 This is the position in this research. In this interpretative mission, when
reading a text or listening to someone, the researcher should forget all her preconceptions
concerning the content. She should, in the words of Gadamer, “remain open to the meaning of
the other person or text”. This kind of openness and sensitivity involves neither “neutrality”
nor the “extinction of one’s self”, but rather being aware of one’s own bias, so that what is
being interpreted can present itself in all “its otherness” and thereby present its own truth
against the researcher’s own preconceptions.188
It is clear that the interview as a research method directly violates a positivist conception of
science as interview data consist of meaningful statements, which are based on interpretations
so that data and their interpretations are not strictly separated. Here we must keep in mind that
quantified knowledge is not a goal of interview research, instead the main research findings
are expressed in language. Language is neither objective or universal, nor subjective or
individual, but intersubjective. Additionally, the interview is intersubjective instead of a
purely objective or subjective method.189
With regard to the language used in part of my interview data, especially where the informant
had a similar educational and professional background as I have, it is clear that we share the
same language of the ‘human rights expert’. The informant uses the same jargon and semi-
technical language of rights and duties, the same concepts of accountability and
empowerment. These are concepts I wanted to understand in the particular context of a project
in Malawi. This means that the ‘analysis’ is already taking place during the interview, as the
informant is helping me to analyse what is happening in the project and what role human
rights play in it as well as in Malawian society and politics overall.190 I am interested in
182
Kvale, “To Validate is to Question”, supra note 180, at 74 and 83.
183
Ibid., at 75.
184
Kvale, InterViews, supra note 149, at 7.
185
Mats Hårsmar Understanding Poverty in Africa? A Navigation through Disputed Concepts, Data and
Terrains (Uppsala: Nordiska Afrikainstitutet, 2010) at 9-10.
186
Allaine Cerwonka, “Nervous Conditions”, supra note 167, at 19.
187
Hårsmar, Understanding Poverty in Africa?, supra note 179, at 10.
188
Hans-Georg Gadamer, Truth and Method (London: Continuum, second, revised edition of 2004) at 271-272.
189
Kvale, InterViews, supra note 149, at 62 and 66.
190
Thank you Professor Jeremy Gould for pointing this out to me.
31
understanding how these concepts are used and interpreted within the different projects, by
the different actors, and through listening to my informants giving meaning to these concepts
I am learning precisely that. I acquire information about how they want me to think they apply
the concepts; how they try to instil empowerment in the people they work with. They offer me
their story about what empowerment should be – and that reveals to me how different actors
in the human rights community, the development/relief community, and the organisations
where these two communities have come together as a rights-based approach (RBA) have
different interpretations of these concepts. I can relate this to theories, and help in
understanding the ideological differences these stories display.
What can be done to validate the findings that are based on interview data is to check the
credibility of knowledge claims. We do not need to ‘check’ or validate the story given to us in
the interview against ‘one truth’ but instead ask why this story is relevant now, what does it
reveal? As put by Kvale: “Validation becomes investigation, continually checking,
questioning, and theoretically interpreting the findings.”191 Theory helps in understanding the
reality that is reflected in the interviews.
1.6.6 Summary
In this chapter I have made an effort to describe and problematise the various steps I have
taken in the research process of the empirical section. Secondly, I have described the research
strategy I have chosen in order to find an answer to my main research questions. In this
context I have also explained why and how I have chosen the three food security programmes
that are the object of enquiry. Thirdly, I have described the steps in data collection and the
main challenges in using interviews as a research method. Ethical issues are part of these
challenges. Finally, I have described my approach to the analysis of the qualitative data. I
conclude by problematising the issue of validity in the analysis of qualitative data.
1.7 Thesis outline
Before presenting the analysis of the empirical data it is necessary to outline what is meant by
key concepts such as development, human rights, human rights-based approaches to
development and food security as well as human rights principles in general. This helps us to
understand the three case studies from Malawi. Therefore, the second part of this study is a
critical conceptual analysis that reviews how these concepts relate to agency and change. It
starts with a review of the meanings given to ‘development’, introducing the major
development schools and exploring what kind of ‘development’ is striven for in human rights
approaches. It moves on to critically reviewing the human rights concept itself. Thirdly, it
explores the relationship between food rights, food security and livelihoods. It reviews what
meaning has been given to the right to food by international legal experts, by activists and, as
an example, by national legal actors in India. Finally, the role and meaning of five selected
‘human rights principles’ in development is critically analysed. This is necessary in order to
understand what difference human rights make as they enter into development programmes
and projects, what new elements are brought in, and what value is added. The overall purpose
of part II is to give theoretical explanations as to how these concepts have been defined by
various actors in various contexts as well as answers to the general questions concerning the
transformative potential of human rights in development practice and food security posed in
part I. In this way we can understand the role of these concepts in food security in Malawi.
191
Kvale, “To Validate is to Question”, supra note 180, at 77 and 78.
32
Part III is a case study, based on empirical data, from Malawi. It starts with an overview of
human rights discourse in Malawi. It then moves on to analysing the three projects, starting
with a food assistance programme, that represents a classical charity-based response to food
insecurity, then analyses a rights-based sustainable livelihoods programme and lastly a
conventional human rights project that is working with a legal approach. Finally, the
assumptions are reformulated as conclusions.
33
PART II CONCEPTUAL ANALYSIS
2.1 Review of the meanings attached to ‘development’
Gro Harlem Brundtland noted in her forward to the influential report Our Common Future of
1987 that “the word ‘development’ has been narrowed down by some into a very limited
focus, along the lines of ‘what poor nations should do to become richer’, and thus again is
automatically dismissed by many in the international arena as being a concern of specialist, of
those involved in questions of ‘development assistance’”. Brundtland challenges this
assumption and suggests a common sense definition of development as something we all do
in attempting to improve our lot.192 As much as I like this definition, for the purpose of this
thesis, I need to first of all explain and elaborate on the usage of the term ‘development’
during the last half century in development discourse. Second, I need to make clear what kind
of ‘development’ is in focus in human rights-based approaches to development. Development
for whom? Development of what? What is the objective of development?
2.1.1 Why ‘development’?
Looking back at the early days of the ‘development era’ that emerged after the Second World
War, Gilbert Rist points out that there might well have been hesitation about the right term for
the many different practices designed to increase human well-being. ‘Civilisation’ was a term
widely used until the end of the First World War and it could have been taken up again.193
(Rist also argues that colonisation was seen as philanthropic in that it held a worldwide
promise of civilisation for all, and it was seen as an expression of solidarity, something which
resembles the rhetoric of the modern development discourse.)194 ‘Westernisation’ could have
been chosen to highlight the origins of the implicit model; and ‘modernisation’ also had its
supporters. In the end, however, it was ‘development’ that gained most support.195
The way in which the term development has been used in the era after World War II is related
also to the term ‘underdevelopment’, which was introduced by President Truman in 1949.
‘Underdevelopment/development’ suggested that there is a final stage and the possibility of
bringing about a change in order to achieve it. It was then perceived to be possible to
‘develop’ a region; as opposed to things just ‘developing’. Rist writes: “This ‘development’
took on a transitive meaning (an action performed by one agent upon another) which
corresponded to a principle of social organisation, while ‘underdevelopment’ became a
‘naturally’ occurring (that is, seemingly causeless) state of things.”196
According to Gasper, we see the following four major types of usage of ‘development’ in
development studies literature: (1) development as fundamental or structural change; (2)
development as intervention, action; (3) development as improvements, ‘good change’; (4)
development as the platform for improvement, that which enables or allows improvement.
192
The World Commission on Environment and Development, Our Common Future (Oxford: Oxford University
Press, 1987) at xi.
193
Gilbert Rist, The History of Development: from Western Origins to Global Faith (London: Zed Books,
English edition 2002) at 25.
194
Ibid., at 51.
195
Ibid., at 25.
196
Ibid., at 73. Emphasis in original.
34
The two last categories are more ‘evaluative’ in the usage of the word.197 A commonality
among the many usages of ‘development’ is denoting enhancement, i.e., increasing value or
desirability – which naturally is subjective. What is ‘good change’ for an agribusiness might
not be good for a landless peasant, etc. Development as a concept is used by those who
promote the interest of the affluent and by those who would serve those less affluent.198
When we speak of different ways of defining development, and what differentiates them and
what they have in common, a word of caution is needed, according to Rist. These definitions
are all based upon the way in which one or many individuals picture the ideal conditions of
social existence. These pictures are often inviting and desirable, and nobody can say it is
illegitimate to dream of a more just world where people are happy, live healthier and longer,
are free of poverty, exploitation and violence. It is fairly easy to assemble a broad consensus
around such unchallengeable values. However, says Rist, “if ‘development’ is only a useful
word for the sum of virtuous human aspirations, we can conclude at once that it exists
nowhere and probably never will!”199 Nevertheless, ‘development’ does exist, through the
actions that it legitimates, through institutions that are dealing with development efforts. It is
very real that there are development projects, development cooperation, development
ministers, UN agencies for development, development banks, NGOs furthering development,
and many other institutions and activities with similar aims. In the name of development all
sorts of activities are undertaken: schools and clinics are built, wells dug, roads laid, children
vaccinated, oversight institutions established, reports drafted, experts hired, trade liberalized,
and much more. Every modern human activity can be undertaken in the name of
development.200
This thesis is concerned with the activities that are undertaken in the name of development
cooperation, specifically those that are claimed to support human rights and food security.
Therefore, it is essential to be aware of the ways in which the thinking of different institutions
and schools of development defines the desirable outcome of the activities carried out for
further ‘development’.
2.1.2 The economic growth and human development schools
In the crudest usage, development is seen as the same as economic growth, or GDP per
capita.201 Over time economists have been largely preoccupied with GDP as a measurement
of economic growth, along with other abstract concepts such as saving and investment and
exports and imports. A lack of recognition has been given to people as an end result of
development, and there has been a general confusion about ends and means.202
Under the leadership of Pakistani economist Mahbub ul Haq (1934-98), the annual Human
Development Reports (published since 1990) made a breakthrough in the campaign to see
development as more than economic growth. The evolution towards ‘human development’
had, of course, been gradual, and in addition to ul Haq, the Indian economist and philosopher
197
Des Gasper, The Ethics of Development (Edinburgh: Edinburgh University Press, 2004) at 28.
198
Jan Knippers Black, Development in Theory and Practice: Paradigms and Paradoxes (USA: Westview Press,
second edition 1999) at 15.
199
Rist, The History of Development, supra note 193, at 10. Emphasis in original.
200
Ibid., at 10-11.
201
GDP stands for Gross Domestic Product and measures the value of goods and services produced by a national
economy over a year. Gasper, The Ethics of Development, supra note 197, at 28.
202
Mahbud ul Haq, Reflections on Human Development (New York: Oxford University Press, 1995), at 4-5.
35
Amartya Sen (1933-) also played a considerable role in the development of the concept. Sen
integrates many of his insights under the label ‘development as freedom’.203
Since the introduction of the concept of ‘human development’, it is generally accepted that the
real purpose of development is to enlarge people’s choices in all fields. Economic growth or
income increase is one of many choices people make, but it is not the only one.204
Paradoxically, human development thinking came to the fore around the same time as there
was a switch from state to market in the name of neoliberalism, according to which the central
objective – economic growth – is to be achieved through structural reform, deregulation,
liberalisation, and privatisation.205 These two dominant development schools with different
objectives and also with different agendas concerning how to reach them have existed side by
side ever since. By the end of the 1990s, the World Bank, known for promoting development
as being understood and measured in economic and monetary terms, now underlined the
human development aspect.206
However, economic development thinking remained, and still is, influential, and people are
not at the centre of development policy and planning in many countries. As an example of the
strong role that economic development still plays, it can be mentioned that official
development assistance (ODA) is defined by the Organisation for Economic Co-operation and
Development as “those flows to countries and territories on the DAC List of ODA Recipients
and to multilateral development institutions which are […] administered with the promotion
of economic development and welfare of developing countries as its main objective”.207 This
means that in development cooperation, the main objective is economic development of
nations.
It is important to understand the difference between the economic growth and human
development schools. The defining difference is that the first focuses on the expansion of one
choice only – income – while the second takes on board all human choices, be they economic,
social, cultural or political. It can be argued that economic growth can enlarge all other
choices as well. However, it is important to understand that this is not necessarily true. There
is simply no automatic link between income and human lives. There are many reasons why
income expansion may fail to enlarge human options. National priorities may lead to uneven
income distribution; the use of income is just as important as the generation of income.
Moreover, knowledge, health, a clean physical environment, political freedom and enjoyment
of life are not exclusively, or largely, dependent on income. National wealth can increase
people’s choices in these areas – but they might not.208 Wealth is a means, not an end. Ul Haq
writes “unless societies recognize that their real wealth is their people, an excessive obsession
with creating material wealth can obscure the goal of enriching human lives.”209
However, this does not mean that growth is not important in the human development school.
Rejecting an automatic link between growth and flourishing human lives is not rejecting
growth itself. Economic growth is held important in poor societies for reducing or eliminating
poverty. What is essential to keep in mind is that the quality of growth is just as important as
203
Gasper, The Ethics of Development, supra note 197, at 164-165. See Amartya Sen, Development as Freedom
(Oxford: Oxford University Press, 1999).
204
ul Haq, Reflections on Human Development, supra note 202, at xvii.
205
Pieterse, Development Theory, supra note 2, at 6.
206
The World Bank, “Beyond Economic Growth”, 2000, at 8. Online book available at http://www.worldbank.
org/ depweb/beyond/beyond.htm, visited 14 May 2012.
207
Development Assistance Committee DAC, “Factsheet: Is it ODA?”, November 2008. Emphasis added.
Available at http://www.oecd.org/dataoecd/21/21/34086975.pdf, visited 14 May 2012.
208
ul Haq, Reflections on Human Development, supra note 202, at 14-15.
209
Ibid., at 15.
36
its quantity. This means conscious public policy is needed to translate economic growth into
human growth. This may require restructuring of economic and political power, far-reaching
land reform, progressive tax systems, new credit systems, a major expansion of basic social
services to reach all the deprived population, etc. The human development paradigm claims to
question the existing structure of power. In the human development model, the policy
interventions naturally vary from country to country depending on the circumstances but what
is common to all of them is that people are moved to the centre stage. Each development
activity is analysed to see how much people participate in it and benefit from it.210
There must be a search for models of development that enhance human life, not
marginalize it; treat GNP growth as a means, not as an end; distribute income
equitably, not concentrate it; replenish natural resources for future generations,
not destroy them; and encourage the grass-roots participation of people in the
events and processes that shape their lives.211
The human development ‘definition’ of development is normative in the sense that it
represents the UNDP’s vision of what it hopes development to be. The formula of ‘enlarging
people’s choices’ does not mean very much: the process is open (it leads to the ‘expansion of
possibilities) and is in principle unlimited. It also assumes the existence of ‘stages of
development’, just like any economic theory.212
2.1.3 Defining development and poverty in human rights approaches
The meaning of development in human rights thinking
What kind of understanding of development is the basis for human rights-based approaches to
development? It is clear that human rights-based development is concerned with people as
rights-holders and claim-makers. Moreover, as Nowak points out, full realisation of human
rights is replacing economic growth as the ultimate goal of the development process.213 The
human rights-based approaches to development and the right to development are two distinct
but yet intertwined phenomena and it is useful to look at the right to development discourse in
order to understand what a human rights perspective on development means. The right to
development discourse has given this much more thought than what is standard in various
human rights approaches to development, where development as a concept is often taken to be
a given.
It might be interesting to note that already by 1977 the Commission on Human Rights
requested that the Secretary General would undertake a study into the international aspects of
the right to development, which was being debated in the UN at the time. In this report,
published in 1979, the Secretary General set forward an analysis, based on major UN
instruments and debates, on which elements needed to be part of the concept of
210
ul Haq, Reflections on Human Development, supra note 202, at 16.
211
Ibid., at 117.
212
Rist, The History of Development, supra note 193, at 208-209.
213
Manfred Nowak, “A Human Rights Approach to Poverty”, in M. Scheinin & M. Suksi (eds), Human Rights
in Development Yearbook 2002 (Leiden: Martinus Nijhoff Publishers, 2005) 17-35, at 18. Nowak claims this
happens for “the first time” but this is an overstatement. Growth as a goal for development has been criticized
since the 1970s and “replaced” by many alternative models ever since.
37
development.214 This meaning of development has striking resemblance with human
development and is also outlines what we today know as human rights-based principles:
(i) The realisation of the potentialities of the human person in harmony
with the community should be the central purpose of development;
(ii) The human person should be the subject not the object of development;
(iii) Development requires the satisfaction of both material and non-
material basic needs;
(iv) Respect for human rights is fundamental to the development process;
(v) The human person must be able to participate fully in shaping his own
reality;
(vi) Respect for the principles of equality and non-discrimination is
essential; and
(vii) The achievement of a degree of individual and collective self-reliance
must be an integral part of the process.215
Once development is seen to contain these elements, it is obvious that it is not a concern only
for ‘developing countries’ but for every nation. The relationship between economic growth
and the well-being of the individual, problems of non-participation in decision making, and
environmentally unsustainable policies216 are only a few issues that were mentioned as
examples of problems being relevant to all societies in 1979 and remain so still today. In the
above list, there is no talk of the realisation of human rights being the objective of
development and also in other ways the definition of development has more in common with
the human development philosophy, underlining the importance of the realisation of the
potentialities of the human person, than modern discourse on the right to development.
The Declaration on the Right to Development was finally adopted in 1986, and here human
rights are seen as instruments of change,217 implying that everybody has the right to a process
of change which is compatible with the human rights norms listed in human rights treaties.218
One can say that development is defined as ‘good change’, and ‘good change’ is defined as
being compatible with human rights norms.
Many countries of the South hoped to link the development discourse with the human rights
agenda through the adoption of the UN Declaration on the Right to Development in 1986. The
Declaration was, however, adopted with a certain degree of hesitation among the so called
developed countries.219 Its legal and political status (a non-legally binding instrument as it is)
has remained controversial.220 However, the Declaration opened up for debate on issues of
214
Commission on Human Rights, report by the Secretary-General on the international dimensions of the right to
development, in para 26. UN doc. E/CN.4/1334, 2 January 1979. See also Gready and Ensor, “Introduction”,
supra note 70, at 18.
215
Report by the Secretary-General on the international dimensions of the right to development, supra note 214.
216
Ibid., para 25.
217
Theo van Boven, “The Right to Development and Human Rights”, 28 The Review (1982) 49-56 at 50.
218
Peris Jones and Kristian Stokke, “Introduction” in P. Jones & K. Stokke (eds), Democratising Development:
The Politics of Socio-Economic Rights (The Netherlands: Koninklijke Brill NV, 2005) 1-38 at 5. See also Arjun
Sengupta, The Right to Development, Report by the Independent Expert on the Right to Development, UN doc.
E/CN.4/2000/WG.18/CRP.1, para. 4.
219
The United States voted against the resolution and eight other OECD countries abstained. See Arjun
Sengupta, “On the Theory and Practice of the Right to Development”, 24 Human Rights Quarterly (2002) 837-
889, at 844.
220
Anja Lindroos, The Right to Development (Helsinki: The Erik Castrén Institute of International Law and
Human Rights Research Reports 2/1999) at 8.
38
individual human rights in development work, and this is still an ongoing topic in the UN.221
As a basis for human rights-based development work, the right to development has, however,
not been very popular. Bilateral donors in fact very seldom refer to the right to
development.222 The Declaration places emphasis on global inequity among states and donor
obligations, referring also to a new international economic order based on sovereign
equality,223 and this is probably too political for many international development actors.224
Among (Western) development actors various human rights-based approaches to development
have gained wider support – and maybe this is a deliberate effort to stay away from the
controversies raised due to the reference to global inequalities in the Declaration on the Right
to Development.225
Another reason for the hesitation among some Western states towards the Declaration has
been the general reluctance to accept economic, social, and cultural rights as enforceable
human rights. Although this has changed significantly over the past ten year or so, historically
there has always been certain tension between the North, that has traditionally emphasised
civil and political rights, and the South that has given primary importance to economic and
social rights.226 One of the reasons for the long separation of development and human rights
could be found in this tension. Around the time of the adoption of the Declaration on the
Right to Development, the human rights community, especially the NGOs of the North, but
also academics and the UN, focused almost exclusively on civil and political rights.227
Consequently, most economic and social rights have, until recently, had a marginal position in
the human rights community during the last half century. It can, for example, be mentioned
that Amnesty International changed its statute to include work on economic, social, and
cultural rights in 2001228 (and it can be added that this was a hard-fought for move and a
controversial shift within Amnesty).229 The development community has for its part neglected
both economic and social rights – that could provide a legal and ethical basis for their work –
221
Sia Spiliopoulou Åkermark, “Human Rights, Globalization, Trade and Development” in C. Krause & M.
Scheinin (eds), International Protection of Human Rights: A Textbook (Turku: Åbo Akademi University Institute
for Human Rights, 2009) 343-362, at 360.
222
See Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1423.
223
Article 3(3): “States have the duty to co-operate with each other in ensuring development and eliminating
obstacles to development. States should realize their rights and fulfil their duties in such a manner as to promote
a new international economic order based on sovereign equality, interdependence, mutual interest and co-
operation among all States, as well as to encourage the observance and realization of human rights.”
224
Jones and Stokke, “Introduction”, supra note 218, at 5. See also Cornwall and Nyamu-Musembi, “Putting the
‘Rights-Based Approach’”, supra note 44, at 1424.
225
See Celestine Nyamu-Musembi and Andrea Cornwall, What is the ‘Rights-Based Approach’ all about?
Perspectives from International Development Agencies (Brighton: Institute of Development Studies, IDS
Working Paper 234, 2004), at 9. Available at http://www.ids.ac.uk/files/Wp234.pdf, visited 10 May 2012.
226
See Lindroos, The Right to Development, supra note 220, at 70.
227
The HIV/AIDS work can serve as an example. In the 1990s, the major share of human rights attention
regarding HIV/AIDS was paid to confidentiality, privacy and bodily autonomy that were being described in the
language of civil and political rights. David P. Fidler, International Law and Infectious Diseases (Oxford:
Oxford University Press, 1999) at 209. For an example of civil and political rights related issues raised in the
HIV/AIDS context, see George J. Annas, “The Impact of Health Policies on Human Rights: AIDS and TB
Control”, in J. M. Mann & S. Gruskin, et al (eds), Health and Human Rights: A Reader (New York: Routledge,
1999) at 37-45. For criticism that the human rights approach e.g. in the International Guidelines on HIV/AIDS
and Human Rights is reinforcing the separation between civil and political rights from economic, social and
cultural rights, see Mark Heywood and Dennis Altman, “Confronting AIDS: Human Rights, Law, and Social
Transformation”, 5 Health and Human Rights (2000), 149-177, at 157 and 166.
228
“The History of Amnesty International”, see http://www.amnesty.org/en/who-we-are/history, visited 14 May
2012.
229
Stephen Hopgood, “”Dignity and Ennui” A Review Essay of Amnesty International’s Report 2009: The State
of the World’s Human Rights”, 2 Journal of Human Rights Practice (2010) 151-165, at 157.
39
and civil and political rights that are equally important in the struggle for human dignity and
against social exclusion.230
The Declaration on the Right to Development speaks about development as a particular
process of economic, social, cultural, and political development, in which all human rights
can be fully realised.231 Furthermore, the preamble of the Declaration defines development as
a “comprehensive economic, social, cultural and political process, which aims at the constant
improvement of well-being of the entire population and of all individuals, on the basis of their
active, free and meaningful participation in development and in the fair distribution of
benefits resulting there from.”232
Arjun Sengupta notes that the concept of well-being in this context extends beyond the
conventional notions of economic growth to include the expansion of opportunities and
capabilities.233 This comes close to the human development understanding of development,
and therefore Sengupta argues that the right to development can be described as the right to
human development.234 The ‘right to human development’ is defined as a development
process that expands substantive freedoms and realises all human rights. In the right to
development perspective, human development is claimed as a human right, and thus becomes
a qualitatively different approach compared to the human development model. The way
development objectives are achieved235 becomes central: “The objective is fulfilling human
rights and the process of achieving this is also a human right.” This process must respect
equality and participation, not be in violation of human rights, be including a clear
specification of obligations and responsibilities and having a mechanism for monitoring.236
Equality and participation are central principles also in human development, but perhaps the
defining difference between the right to development approach and the human development
approach is that the objectives of development are set up as entitlements of rights-holders,
which duty-bearers are expected to fulfil, respect, protect, and promote while respecting
international human rights standards.237
One could say that this view on development represents the human rights communities’
picture of ‘ideal conditions of social existence’, borrowing Rist’s wording; and that as of
today, there is no society where these conditions exist. This is simply an observation – not an
attempt to delegitimise efforts that are striving towards such conditions. Some argue that
having this kind of vision is what is distinctive about a human rights approach to development
– that it sets out a vision of what ought to be,238 providing a normative framework to orient
the practice of development cooperation. The human development discourse is not lacking a
vision for development, but while human rights approaches can refer to internationally agreed
230
Uvin, Human Rights and Development, supra note 52, at 47-48.
231
The Declaration on the Right to Development states: “The right to development is an inalienable human right
by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human rights and fundamental freedoms can
be fully realized.”
232
As cited in Sengupta, “On the Theory and Practice of the Right to Development”, supra note 219, at 847
233
Ibid., at 848.
234
Ibid., at 851. The Office of the United Nations High Commissioner for Human Rights (OHCHR) holds that a
human rights-based approach is a conceptual framework for the process of human development. See OHCHR,
“Frequently Asked Questions”, supra note 81, at 15-16.
235
The importance of the development process was discussed already in the Report by the Secretary-General on
the international dimensions of the right to development, supra note 214.
236
Sengupta, “On the Theory and Practice of the Right to Development”, supra note 219, at 851.
237
Ibid., at 852.
238
Julia Hausermann, A Human Rights Approach to Development (London: Rights and Humanity, 1998) at 31.
40
norms, backed by international law, human development uses more philosophical arguments
to back up their vision.
The different goals between human development and human rights-based development should
be noted: the latter has full realisation of all human rights as the ultimate goal of development
while the former aims at enlargement of peoples’ choices in all fields. Those choices can
change over time.239 Working with a pre-determined goal decreases the role of people as
active agents formulating their own vision for development.
Among the organisations working with human rights-based approaches to development, in
one way or the other, there are critical voices stating that the objective to realise human rights
is too narrow and limited. In order to capture all the goals of development, such as ending
inequality and poverty, it is necessary to extend the notion of rights beyond legal frameworks,
and this again leads to difficulties in delimiting exactly what a right is.240 Therefore, some
organisations choose rights-based programming, where a human rights analysis is brought
into all programming and guides the work, instead of allowing legal human rights to inform
their overall aim.241 Moreover, many organisations struggle with the fact that concepts of
human rights are quite alien within many communities they work with.242 In this thesis an
actor-oriented perspective on human rights in development is proposed as an alternative to
partly address these dilemmas.
‘Poverty’ in human rights approaches
Although in theory human development is about enlargement of peoples’ choices and
freedoms, in practice it is mostly about poverty reduction or eradication (and that is true for
the economic development discourse as well, only the tools for development policy making
are different). Poverty is seen as one of the greatest obstacles to human development. The
human rights community for its part is starting to protest that poverty is the gravest human
rights challenge facing the world today.243 Therefore, here the human development
community and the human rights community have common ground, although it is not part of
human rights practice to monitor or measure poverty.244 Nor is there a unified human rights
definition of poverty. The Office of the UN High Commissioner on Human Rights has
commissioned a number of studies on the subject and suggests that Amartya Sen’s ‘capability
approach’ to poverty245 – that is central in the human development discourse – provides a
conceptual bridge between the discourses on poverty and human rights.246
The concept of ‘capability’ refers to a person’s freedom or opportunity to achieve well-being,
e.g. to what extent s/he can be free from hunger or take part in the life of a community.
239
ul Haq, Reflections on Human Development, supra note 202, at 14.
240
Emma Harris-Curtis et al., The Implications for Northern NGOs of Adopting Rights-Based Approaches,
(England: International NGO Training and Research Centre, Occasional papers Series No: 41, 2005) at 41.
241
ActionAid is an example of one big NGO that is using rights-based programming, but retains its central
vision of addressing poverty. Ibid., 40-41.
242
Harris-Curtis et al., The Implications for Northern NGOs, supra note 240, at 42.
243
Office of the High Commissioner for Human Rights, “Principles and Guidelines for a Human Rights
Approach to Poverty Reduction Strategies”, at iii. Available at http://www.ohchr.org/Documents/Publications/
PovertyStrategiesen.pdf, visited February 2012; Office of the High Commissioner for Human Rights, “Human
Rights and Poverty Reduction: A Conceptual Framework”, New York: 2004, at 5. Available at http://www2.
ohchr.org/english/issues/poverty/docs/povertyE.pdf, visited 10 May 2012; Irene Khan writes in the Amnesty
International publication The Unheard Truth (2009) “that poverty is the world’s worst human rights crisis”.
244
See Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 76.
245
The approach was developed in dialogue with Martha Nussbaum.
246
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 3.
41
Human freedom is thus the common element, linking the two discourses.247 The capability
approach is also a normative framework, evaluating social situations according to the amount
of freedom people have to peruse what they have reason to value.248 Freedom is here
understood in a broad sense, to encompass both positive and negative freedoms. The
capability approach defines poverty as the absence of certain basic freedoms, such as the
freedoms to avoid hunger, disease, illiteracy, and so on. Poverty is no longer defined as a lack
of adequate income as has traditionally been done. Income is not a capability and therefore
not an aspect of well-being in itself, it is seen only as a factor contributing to the achievement
of capabilities.249 However, when we discuss poverty as a social problem we cannot deny the
link to deprivation caused by economic constraints. The OHCHR report argues that there is a
need for a definition of poverty that refers to the non-fulfilment of human rights and at the
same time linking it to the constraint of economic resources.250 Not every case of low level of
well-being can be regarded as poverty, and so the report suggests that non-fulfilment of
human rights would count as poverty when: (1) the human rights involved are those that
corresponds to the capabilities that are considered basic by a given society; (2) inadequate
command over economic resources play a role in the causal chain leading to the non-
fulfilment of human rights.251 As has been noted this is not a definition of poverty from a
human rights perspective, but more a conceptual clarification of when and where human
rights and poverty meet.
In the follow-up publication by the OHCHR, it is repeated that poverty is a state of complex
and interrelated, mutually reinforcing deprivations, which impact on people’s ability to claim
and access their civil, cultural, economic, political and social rights.252
2.1.4 Alternative development models and empowerment
Beside the human development paradigm in the early 1990s there are other development
models that have influenced how development as a concept has evolved over time and what
kind of activities have been carried out in its name. The United Nations Commission on
Environment and Development was established in 1983 in an attempt to address increasing
concern with environmental problems in developing countries and the failure to relate these
problems to development issues.253 The subsequent report Our Common Future (1987) and its
basic concept ‘sustainable development’ had a considerable impact on the development
discourse. The report, also known as the Brundtland Report, defined sustainable development
as “development that meets the needs of the present without compromising the ability of
future generations to meet their own needs”.254
As opposed to the human development school, the sustainable development movement, that
started long before the so called Bruntdland Commission, was to a large extent anti-growth.
247
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 6. In order to fully appreciate the
capability approach as a way of understanding and measuring poverty, one should also be familiar with other
major other philosophical traditions, which have resulted in two distinct approaches to the definition and
measurement of poverty: the income/consumption approach and the participative approach. See Hårsmar,
Understanding Poverty in Africa?, supra note 179, at 24. This is, however, outside of the scope of this chapter.
248
Hårsmar, Understanding Poverty in Africa?, supra note 179, at 23.
249
OHCHR, “Human Rights and Poverty Reduction”, supra note 243, at 9 and 7.
250
Ibid., at 6.
251
Ibid., at 10.
252
OHCHR, “Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra
note 243, at iii.
253
Michael Redclift, Sustainable Development: Exploring the Contradictions (London: Routledge, 1987) at 12.
254
The World Commission on Environment and Development, Our Common Future, supra note 192, at 43.
42
For instance, the Club of Rome had recommended an end to exponential growth. The
objective was not to place the ‘environment’ above the living standards of the poor in the
South, but the Club wanted to see a commitment to meet the basic needs of the poor as the
prime objective of a much more limited growth trajectory.255
In the context of how human needs and the environmental needs can coexist it is interesting to
highlight indigenous cultures’ understanding of ‘development’ and sustainability. In Bolivia,
indigenous president Evo Morales has introduced the concept ‘Living Well’ into the public
discourse as the basis for a global movement against consumerism, depletion of natural
resources for profit, and current models of ‘development’. This indigenous concept ‘Living
Well’ means, in short, having all basic needs met while existing in harmony with the natural
world instead of seeking more and more material goods at the expense of the environment.256
It is a concept, which in theory seems to be similar to attempts to replace GDP with quality of
life (while in practice these attempts still result in prioritising consumption).257 This view
challenges development as a process of constant ‘improvement’. It also challenges the very
core of Western thinking. The idea that growth or progress should be able to continue
indefinitely is an idea that radically distinguishes Western culture from all others.258
This brings us to the fact that dominating development models have always been criticised.
The so called alternative development school that advocates the empowerment model is also
relevant when exploring the meaning of the term development. Criticism of the dominating
economic model of development has also been at the core of this movement.
Alternative development is often referred to as an alternative development model or
paradigm,259 and within this label there are many representatives. What is common to these
voices is an emphasis on ‘development from below’ and an effort to redefine development
itself as social transformation.260 The role of the state is, moreover, not viewed in the same
way as in conventional development: the role of the state is to be an enabler and facilitator of
people’s self-development.261 While human development is state-centred, alternative
development has its agency in local, grassroots, and social movement activism. However,
more recent alternative approaches, represented by e.g. John Friedman, argue that strong civil
society needs a strong state.262 I have chosen one representative of alternative development
thinking, Friedman, because he partly applies a rights language and not only the language of
equity, participation, and environmental sustainability. In 1992 Friedman wrote:
No matter how dynamic, an economic system that has little or no use for better
than half of the world’s population can and must be radically transformed.
Broadly speaking, the objective of an alternative development is to humanize a
system that has shut them out, and to accomplish this through forms of everyday
resistance and political struggle that insist on the rights of the excluded population
255
Redclift, Sustainable Development, supra note 253, at 54.
256
IPS Inter Press Service, “Bolivia: ‘Living Well’ in Harmony with the Environment” by Franz Chávez, 2010.
Available at http://ipsnews.net/news.asp?idnews=51125, visited 8 May 2012.
257
Alberto Chirif, “Happiness as a Quality of Life Indicator”, 1-2 Indigenous Affairs (2010) 64-69, at 69.
258
Rist, The History of Development, supra note 193, at 238.
259
Pieterse, Development Theory, supra note 2, at 81.
260
Ibid., at 82-83.
261
Ibid., at 83.
262
Ibid., at 96.
43
as human beings, as citizens, and as persons intent on realizing their loving and
creative powers within.263
This model strives for inclusive democracy and appropriate economic growth, the overarching
intent being to reintegrate the invisible poor with the larger community, and to assert their full
rights as citizens in that community. Friedman claims that this kind of reintegration of as
many as half the population with an existing political community in which they exercise few
rights cannot be done unless the system of dominance, i.e., authoritarianism, peripheral
capitalism, and patriarchy are themselves fundamentally changed. This battle for systemic
change may last for generations.264
As we can see rights talk has played a role in alternative development thinking. Friedman
argues that human rights are one out of three foundations for the claim that every person is
entitled to both adequate material conditions of life and to be a politically active subject in his
community. (The other two are citizens rights and “human flourishing”.)265
The way human rights are understood and applied in a rhetoric argument is, however,
different from the mainstream understanding, underlining from below action and critically
examining dominant definitions. This is also the case with regard to democracy. Friedman
writes that “contrary to the popularly held view that democracy is defined primarily by a set
of individually held rights, such as the vote or free speech, it is here understood to rest on the
legitimate powers of an actualized citizenship or of responsible membership in a politically
constituted community.”266 This means strengthening the meaning and reality of political
community, and seeing political practice as a form of collective self-empowerment.267 This
again is linked to the struggle for accountability: a strong political community requires an
open political space in which to mobilise and be able to hold the state accountable for its
actions.268 As we will see in the following chapters, the way the concepts empowerment and
accountability are used, and how they are linked to human rights, differs from one
development actor to another.
The term ‘community development’ can be seen as being part of the alternative development
paradigm, although there are community development projects that are top-down in practice.
Ife points out that most development projects are a mixture of top-down and bottom-up
approaches. ‘Empowerment’ and ‘participation’ are principles valued in most top-down
projects and many bottom-up projects make use of external expertise, to mention one example
of how the mixture occurs in practice. This mix of top-down and bottom-up approaches also
contributes to giving ‘development’ a bad name; the criticism is usually directed towards top-
down approaches that seek to impose on a community someone else’s view of what is ‘good
development’.269 In bottom-up community-driven development it is accepted that
‘development’ can, and will, mean very different things in different contexts and
communities.270
According to Ellerman there are two ways the ‘helpers’ (i.e., development professionals or
others working with ‘development’) can thwart autonomy or self-help: (1) “the helper, by
263
John Friedman, Empowerment: The Politics of Alternative Development (Oxford: Blackwell Publishers,
1992) at 13.
264
Ibid., at 72-73.
265
Ibid., at 10.
266
Ibid., at 74.
267
Ibid., at 76.
268
Ibid., at 81.
269
Ife, Human Rights from Below, supra note 8, at 18.
270
Ibid., at 20.
44
professionally guided programs of social engineering, deliberately tries to impose his will on
the doer; (2) the helper, by benevolent aid, replaces the doer’s will with her will, perhaps
inadvertently.”271 Ellerman gives a number of examples of this kind of “unhelpful help”. All
kinds of conditioned aid, human rights related or not, can be placed in the first category while
examples of the latter can be found in the area of funding given based on externally supplied
motivation of carrots and sticks.
Ellerman suggests an indirect approach, which is based on the respect for the autonomy of the
doers. Autonomous action is based on inside-out, internal, or intrinsic motivation and this
does not go well hand in hand with attempts to engineer action with external carrots and
sticks.272 Similarly, bottom-up community development is based on the premise that local
knowledge, wisdom, skills and understandings need to be valued above top-down wisdom and
experience. In the context of our modern industrial society this is a radical position because
we are used to bureaucratic models that assume superior wisdom to reside at the top of the
hierarchy, and that the task of political, administrative and community processes is the
implementation of this superior wisdom.273 Ellerman makes a distinction between the ‘direct
path’ and the ‘indirect path’. In the first approach, the helpers help the doers by supplying
motivation to get the doers to do what the helpers value “the right thing”. In contrast, on the
indirect path, which respects autonomy, the helper helps the doers to help themselves by
reducing obstacles and by supplying e.g. resources to enable the doers to do what the doers
were already motivated to do themselves.274
Uvin compares this to ‘a radical capacity building approach’. The success of such an approach
can be measured according to the degree to which local actors, whether public or private, are
allowed to fail and learn from failure. Local action is never substituted, and the helper only
brings in complements on demand. Uvin is convinced of the need for such a radical approach
to institution building but is not sure it conforms with human rights standards. He sees
compatibility between the approach and human rights values such as freedom of choice and
autonomy. Civil and political rights might be strengthened through this approach, depending
on the nature of the institutions. Concerning ESC rights, he believes this approach takes
longer to yield results in their realisation than direct delivery- or service-based approaches.
The approach of “do not substitute or impose” might be difficult or impossible to use applying
a human rights-based approach to development cooperation, in which the build-in assumption
is that capacity is created and used for human rights-conforming aims. Allowing local
organisations and people to struggle for their own change and learn from their own mistakes
becomes limited in a strong human rights approach that has clear objectives where the change
should be going.275 The contradiction between free choice and conditionality is only one
example of tensions that are present in all aid.276 At first sight it seems that human rights,
when conventionally defined, add to the contradictions and paradoxes rather than offering
solutions. I will show in the next chapter that an actor-oriented, or bottom-up approach, as
suggested by Jim Ife is more compatible with alternative development thinking and from
below community development.
271
David Ellerman, “Helping Self-help: The Fundamental Conundrum of Development Assistance” 36 The
Journal of Socio-Economics (2007) 561-577, at 564.
272
Ibid., at 566.
273
Ife, Human Rights from Below, supra note 8, at 30.
274
Ellerman, “Helping Self-help”, supra note 271, at 575-576.
275
Uvin, Human Rights and Development, supra note 52, at 114-115.
276
Ibid., at 118.
45
2.1.6 Concluding remarks
It is quite sensible for development to change meaning over time in relation to changing
circumstances. ‘Development’ then serves as a mirror of changing economic and political
priorities and choices, and changing relations of power and hegemony.277
It is inevitable that there is substantial ambivalence and contradiction when we try to find a
definition for development. ‘Development’ can be seen as the broad movement which has
been carrying the market system along for the past two centuries – or it can be seen as the
entire set of measures through which the world should be made a fairer place.278 Hugo Slim
actually suggests we do away with the word development, and talk a political language of
equality, fairness, social justice, rights and responsibility.279 This suggestion shows how
contested the concept development is.
As we can see human rights have played a role in both mainstream development280 and in the
so called alternative development, and the two are not mutually exclusive. Mainstream
development may currently be dominating, but at its side an alternative development
discourse also exists, and it often brings in new ideas (gender equality and sustainability are
two examples) into the mainstream. Broadly speaking one can see a divide between human
and alternative development, on the one hand, and positivism of growth on the other.281
In the right to development and human rights-based approaches to development there are
elements of people-centred human development, with a strong role to be played by the state.
Since human rights discourse tends to avoid political questions, there is no clear position on
economic systems and the question of growth. There is no fundamental critique or
questioning of the very foundational (Western) idea of ‘development’ as constant growth or
improvement; the human rights-based model simply puts some limitations on what actions
can be legitimised in the name of development as well as offering ‘new’ principles, based on
human rights norms, for the development process.
The objective of the right to development and human rights-based approaches to development
is the realisation of human rights for individuals, as rights-holders, by states, as duty-bearers,
under international human rights instruments. Development is defined as a process of
economic, social, cultural, and political development, in which all human rights can be fully
realised. This view on development reflects how the mainstream human rights community
views ‘ideal conditions of human existence’. It is a society where there are no violations of
the rights and freedoms guaranteed in human rights instruments. It is a society where there is
“constant improvement of well-being of the entire population and of all individuals”, as
declared in the preamble of the Declaration on the Right to Development. It is a society where
all children are vaccinated, go to school and have access to nutritiously safe food and potable
drinking water,282 and so on. The ambition is high and the intension is good, but the outcome
might be a rather uniform society far from the vision that development is about “realization of
the potentialities of the human person in harmony with the community”, as stated in the UN
report on the international dimensions of the right to development in 1979.
277
Pieterse, Development Theory, supra note 2, at 7.
278
Rist, The History of Development, supra note 193, at 214.
279
Slim, “A Response to Peter Uvin”, supra note 57, at 5.
280
Mainstream development can be defined as everyday development talk in developing countries, international
institutions and international development cooperation. Pieterse, Development Theory, supra note 2, at 94.
281
Pieterse, Development Theory, supra note 2, at 96.
282
Compare with General Comment No. 14 (2000) on the highest attainable standard of health, para 36, by the
Committee on Economic, Social and Cultural Rights. UN doc. E/C.12/2000/4.
46
We can compare the human rights development objective with the objective of the human
development school, which is an enlargement of people’s choices in all fields. People may
value vaccinations as a way of preventive health care, or they may not value it, they might
value public schooling or not. Although the human rights system naturally provides for
individual choice, the human development model has a stronger philosophical basis
underlining the freedom and agency of individuals and groups. When the objective is given
(from above as stipulated in human rights instruments and by expert-led institutions) there is
less room for formulating people’s own visions of what kind of development they might
value.
However, when looking at the policies proposed in the human development school, they too
are rather uniform and offer less room for freedom and autonomy. Moreover, although in
theory people are at the centre of human development policies, in practice development
progress continues to focus on nations or economies, rather than people.
The strongest emphasis given to agency, autonomy, and from below action is in the
alternative development models. ‘Development’ is accepted to mean very different things in
different contexts and communities, and the diversity that springs out of this is valued. Rights
talk has been popular within the alternative development paradigm but the definition of what
‘rights’ mean is left open and the objective of development efforts is not linked to
international human rights treaties.
2.2 Giving meaning to ‘human rights’, agency, and change in human rights
discourse
In this chapter, I raise questions about the nature of human rights. What kind of understanding
of the human rights concept can be respectful and relevant to the lived realities of the actors
striving to improve the condition of their lives, i.e., doing ‘development’? Who gives meaning
to human rights? One of the central arguments set out here is that it is doubtful that human
rights can be drivers of change that contest the status quo in favour of oppressed people if
these very same people do not have a say in how they understand the concept of human rights.
In order to be relevant, the people, who are to claim and implement international standards of
human rights must perceive the concept of human rights and its content as their own. Human
rights cannot be imposed on people from above as specialised expert knowledge, instead
people must regard these standards as emanating from their own worldview and values.283
Legitimacy of human rights is key for their practical relevance.
2.2.1 Introduction
My questions are related to the question raised by Balakrishnan Rajagopal as to whether the
current trends in international law “will end up formalising and reinforcing a ‘hegemonic’
international law, or whether there is still some potential for making international law into a
counter-hegemonic tool.” Rajagopal argues that if it is going to be possible for a co-existence
of counter-hegemonic international law alongside hegemonic284 international law, then the
Third World’s reliance on discourses such as human rights or development need to be
283
Abdullahi Ahmed An-Na’im, “Conclusion” in A.A. An-Na’im (ed.), Human Rights in Cross-Cultural
Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992) at 431.
284
Hegemony refers to “power that maintains certain structures of domination” that is ordinarily invisible. Susan
F. Hirsch and Mindie Lazarus-Black, “Performance and Paradox: Exploring Law’s Role in Hegemony and
Resistance”, in Hirsch & Lazarus-Black (eds), Contested States: Law, Hegemony and Resistance (New York:
Routledge, 1994) 1-31, at 6.
47
seriously rethought. Human rights discourse has been, in the past, used by the Third World
against colonialism, apartheid, and in numerous self-determination movements. Today it is
still used as a limited shield in the hands of social movements, NGOs and victims of human
rights violations but the discourse of human rights has also “turned out to be a core part of
hegemonic international law”.285 Human rights discourse of today has a choice, in
Rajagopal’s opinion, to either insinuate itself with hegemonic international law or it can be
part of a struggle to strengthen counter-hegemonic international law.286 This thesis argues that
an actor-oriented approach to human rights from below, in which the voice of the actors
themselves is strengthened in the processes of giving meaning to human rights, may be useful
if the human rights idea is to be relevant as a counter-hegemonic strategy.
One fundamental dilemma for human rights practitioners, especially working in the South, is
that there is often a gap between global visions of justice and specific, local community-based
visions of justice.287 In her research on the localisation of human rights, Merry has seen that
human rights ideas still have difficulty in crossing the divide between their global sites of
production and their local sites of appropriation.288
I agree with Merry that:
[T]he paradox of making human rights in the vernacular [is]: in order to be
accepted, they have to be tailored to the local context and resonate with the local
cultural framework. However, in order to be part of the human rights system, they
must emphasize individualism, autonomy, choice, bodily integrity, and equality,
ideas embedded in the legal documents that constitute human rights law. These
core values of the human rights system endure even as the ideas are translated.
Whether this is the most effective approach to […] promoting global social justice
is still an open question. It certainly is an important part of the expansion of a
modernist view of the individual and society embedded in the West.289
In this chapter, I look at the debates related to the human rights concept: questions are raised
on human rights and agency; ‘politics’ and human rights; legalization of human rights; human
rights law and change; universalism, relativism, context and particularism; individual and
group rights; and indivisibility and hierarchy between different sets of rights. These issues are
relevant when exploring the potential transformative power of human rights as they enter into
the development sphere.
2.2.2 Historic overview of the human rights movement
Since this study views human rights as social constructions that are discursively constructed,
and therefore by definition change over time, it is essential to have some understanding of the
history of human rights.290 There is no general agreement on this history, and this debate is
outside the scope of this chapter. For the purpose of understanding the role of human rights in
modern development discourse and practice, it is sufficient to know that it is strikingly
recently that the human rights phenomenon became widespread. Although ideals of dignity
and justice have deep roots that can be located in all societies, human rights are a new concept
285
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 64.
286
Ibid., at 71.
287
Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice
(Chicago: The University of Chicago press, 2006) at 103.
288
Ibid., at 224.
289
Merry, Human Rights and Gender Violence, supra note 287, at 221.
290
See Ife, Human Rights and Social Work, supra note 3, at 144.
48
in human history.291 Human rights, as they have been defined in legal documents and legal
practice in the past decades, are a distinct and in many ways a new way of seeking values
such as justice, fairness and humanity. Donnely argues that the claim that most societies and
cultures have practiced human rights throughout history292 confuses these values with modern
legal human rights. Human rights, as equal and inalienable entitlements of all individuals, are
a different way of seeking to realise values such as justice.293 This position can be criticised
for accepting a narrow and formalistic definition of the human rights concept, something this
thesis argues should not be accepted, but it is essential to understand that the dominant human
rights definition departs from other ways of addressing injustice.
Human rights law represents a modern project, first spelled out theoretically by some
Enlightenment philosophers in the seventeenth and eighteenth centuries,294 but the history of
the practical implementation of international human rights extends only a few decades
back.295 According to Mutua human rights law is “an internationalization of the obligations of
the liberal state” – the normative regime of international human rights law originated in
liberal theory and philosophy, taking form in constitutional and other domestic legal regimes
and only after World War II taking form as a binding system of international human right
law.296 (The western Enlightenment tradition within which the dominant human rights
discourse was framed is naturally only one part of the history of struggle for human rights and
can and should be deconstructed as it has lead to a narrow understanding of the human rights
concept,297 but it nevertheless has had great impact on how the human rights movement looks
today.)
Since the 1980s, a variety of groups around the world, and all governments have learned to
speak the language of human rights.298 Beitz highlights that it is since the end of the Cold War
that the scope of human rights doctrine has expanded and the resources devoted to their
advancement and protection have multiplied.299 It remains a debated issue whether the process
of ‘vernacularization’ of human rights has granted ordinary people the use of human rights
291
Rhoda E. Howard, “Dignity, Community, and Human Rights”, in Abdullahi Ahmed An-Na’im (ed.), Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press,
1992) 81-102, at 82.
292
Penna and Campbell for example use so called ‘human rights symbols’ from Africa to show that ‘traditional’
Africa did have a human rights culture and the study and understanding of this culture would have theoretical
and political relevance for both modern Africa and the West. David R. Penna and Patricia J. Campbell, “Human
Rights and Culture: Beyond Universality and Relativism”, in 19 Third World Quarterly (1998) 7-27.
293
Jack Donnelly, “International Human Rights: Universal, Relative or Relatively Universal” in Mashood A.
Baderin & Manisuli Ssenyonjo (eds), International Human Rights Law: Six Decades after the UDHR and
Beyond (Surrey: Ashgate, 2010) 31-48, at 39.
294
The Enlightenment philosophers gave centrality to the human person; instead of ‘man’ being considered a
part of nature and as interconnected with all living beings, ‘he’ was considered to be above nature and having
special value. Valuing of ‘his’ or ‘her’ (usually ‘his) rights became central in philosophical and ethical argument.
Ife, Human Rights from Below, supra note 8, at 71.
295
Heiner Bielefeldt, “Philosophical and Historical foundations of Human Rights” in C. Krause & M. Scheinin
(eds) International Protection of human Rights: A textbook (Turku/Åbo: Åbo Akademi University, Institute for
Human Rights, 2009) 3-18, at 16-17. Donnelly writes that “no society, civilization, or culture prior to the
seventeenth century, however, had a widely endorsed vision, let alone practice, of equal and inalienable
individual human rights.” Donnelly, “International Human Rights”, supra note 293, at 39.
296
Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, 29 Human Rights Quarterly
(2007) 547-630, at 551.
297
See Ife, Human Rights and Social Work, supra note 3, at 146; Paul Tiyambe Zeleza, “Introduction: The
Struggle for Human Rights in Africa”, in P. T. Zeleza & P. J. McConnaughay (eds), Human Rights, the Rule of
Law, and Development in Africa (Philadelphia: University of Pennsylvania Press, 2004) 1-18.
298
Moyn, The Last Utopia, supra note 38, at 218.
299
Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009) at 1-2.
49
from below in transformative ways – and this is also one of the questions that this thesis wants
to elucidate. What is clear is that international lawyers assumed a central prominence.
Moreover, in the 1980s, human rights were no longer a minimalist utopia of anti-politics, and
human rights organizations were forced to move from morality to politics and from charisma
to bureaucracy.300 Human rights were conceived through a desire to transcend politics,301 but
in the thirty years since their explosion in the 1970s, human rights have followed a path from
morality to politics – although all their advocates are not willing to acknowledge this
development,302 and this is an issue we will return to later in this chapter. Human rights
continued to claim that their source of authority transcended politics. However, their
transformation into the dominant framework of the government and improvement of human
life all over the planet changed them profoundly. The human rights movements’ engagement
with ‘governance’ concerns in postcolonial states is one example of embracing politics.303
Returning to the question of human rights as hegemonic and counter-hegemonic; Rajagopal
claims that the expansion of the political use of human rights in the 1980s – he refers to
struggles for democracy in Eastern Europe as well as in Latin America – meant that human
rights discourse was in a counter-hegemonic mode during this time.304 Latin American
policymakers, legal scholars, and activists have historically been strong supporters of the
development of international human rights law, as they have perceived such laws as a way of
protecting weaker states from more powerful states, particularly the United States. Within
these countries there have been vocal domestic human rights organizations demanding respect
for human rights and change.305 Moreover, social movements, e.g. by indigenous peoples,
used a language of human rights to challenge violations and repression during this time. There
were examples of how human rights were used for hegemonic agendas also during the 1980s
but it was the end of the Cold War that made the shift possible, so that a new hegemonic role
for human rights was born. The UN and human rights groups started to more aggressively
pursue humanitarian interventions in the name of human rights in Somalia, the Balkans,
Kosovo, Haiti, and elsewhere. Furthermore, a market-friendly understanding of human rights
was being embraced by the World Bank and several bilateral donors. A new “totalising
discourse”, applying the language of military intervention, economic reconstruction and social
transformation, gave a new hegemonic role to human rights.306 However, this market-friendly
understanding of human rights has not occurred without resistance and during the 1990s
human rights played a role in local struggles against large-scale ‘development’ interventions
such as dam constructions.307
As mentioned earlier, Jim Ife points out that human rights were created at the time of
modernity and the specific ways of viewing the individual that characterise this time. One
300
Moyn, The Last Utopia, supra note 38, at 218-219.
301
Koskenniemi holds that the standard view of international law is that of a “”common language” transcending
political and cultural differences”. Martti Koskenniemi, From Apology to Utopia: The Structure of International
Legal Argument. Reissue with new Epilogue (Cambridge: Cambridge University Press, 2005) at 567.
302
Moyn, The Last Utopia, supra note 38, at 227.
303
Ibid., 223.
304
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 66.
305
Ellen L. Lutz and Kathryn Sikkink, “International Human Rights Law and Practice in Latin America”, in
Judith L. Goldstein, Miles Kahler, Robert O. Keohane & Anne-Marie Slaughter (eds), Legalization and World
Politics (Cambridge: The MIT Press, 2001) 249-275, at 255-256.
306
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 66.
307
For human rights arguments against the building of dams on the river of Narmada see Philippe Cullet,
“Narmada Dams and Human Rights” 17 Frontline (2000). Available at http://www.frontlineonnet.
com/fl1714/17140950.htm, last visited 11 February 2012. The campaign resulted in internal changes of control
and review mechanisms at the World Bank, as well as contributing to setting up of the Inspection Panel at the
Bank.
50
defining feature of modernity has been an effort to seek sameness, a consequence of the view
that there is or should be one ‘right’ way of doing things (sometimes called ‘best practice’).308
The West is in this context seen as modern, urban, and dynamic while especially Africa and
Asia are seen as traditional, rural, and static. These cultures are allegedly characterised by
tradition, despotism, communalism, and irrationality – values that are seen as inherently
opposed to human rights. The world is thereby divided “into the creators and recipients of
human rights, the monitors and monitored, the viewers and the viewed, the globalists and
provincialists, the universalists and relativists.”309
In the following pages I will seek an alternative way of approaching and understanding the
human rights concept. I argue that there is no one-size-fits-all definition of human rights. This
is an approach to human rights that, in a postmodern way, celebrates diversity.310 This
approach does not go back to the ‘roots’ in relation to justice and dignity – it acknowledges
those roots as well as what has been achieved during modernity and moves beyond these
discourses into something new. A historic perspective on human rights and struggle against
oppression shows that circumstances can and do change,311 the current social order is not
given.
2.2.3 A review of the meanings attached to the human rights concept: Moving beyond
human rights as defined by the ‘powerful for the powerless’
The human rights concept: four schools of thought
In this section, I first present four schools of thought on human rights, each of which has its
own way of approaching and understanding the human rights concept. Thereafter, I present a
so called actor-oriented approach to human rights, inspired by Nyamu-Musembi and
complemented by Jim Ife’s ‘human rights from below’. Here I try to put forward an
alternative way of giving meaning and content to the human rights concept where we can
move beyond human rights being defined by the “powerful for the powerless”,312 which goes
against the idea of participation and inclusion – central principles in human rights-based
approaches to development.
An-Na’im claims that the idea of human rights is one of the most characteristic phenomena of
our time. This concept has quickly gained global significance, penetrating into the
consciousness of millions of people in every corner of the world.313 In most research,
including attitudinal research, the human rights concept is taken as a given. Stenner highlights
that it is striking how comparatively little scholarship there is on how ordinary people actually
understand the human rights concept.314 This is the case despite there being serious
disagreement about the human rights concept, rationale, and content, which is not necessarily
308
Ife, Human Rights from Below, supra note 8, at 36.
309
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 10.
310
Ife, Human Rights from Below, supra note 8, at 47. In the postmodern worldview different elements do not
need to fit together, show consistency, or work in harmony, and this allows for communities where difference is
valued rather than eradicated. Ibid. at 47. Pluralism is the ‘ism’ of our time. Kumar, From Post-Industrial, supra
note 16, at 104-105.
311
See Ife, Human Rights and Social Work, supra note 3, at 147.
312
This phrase is used by Ife, Human Rights from Below, supra note 8, at 126.
313
An-Na’im, “Conclusion”, supra note 283, at 430-431.
314
Paul Stenner, “Subjective Dimensions of Human Rights: What do Ordinary People Understand by ‘Human
Rights’?” 15 The International Journal of Human Rights (2011) 1215-1233, at 1216.
51
a terrible thing,315 and that different people within academia, organisations, and state agencies
embrace different concepts of and attach different meanings to human rights.316
Dembour has analysed academic human rights literature and based on the analysis she has
identified four schools of thought on human rights.317 I find her model helpful in clarifying
the different meanings attached to the human rights concept and will therefore use the four
schools as a starting point for a discussion on some pertinent issues related to human rights.
The first school presented by Dembour is the natural school,318 which uses perhaps the most
well-known and common definition of human rights. It is a definition that identifies human
rights as those rights one posses simply by being a human being. Human rights are viewed as
given. Human rights are absolute and universal entitlements based on ‘nature’.319 Martti
Koskenniemi calls this “political theology”, as natural rights suggest that “human
communities are bound by values that precede them.”320 The natural scholars hold that human
rights exist independently of social recognition, even though recognition is preferable.321 To
quote Jack Donnelly: “Although we have human rights universally, simply as human beings,
we enjoy them as a result of contingent political and legal practices.”322
Within the natural school, there is a tendency to celebrate human rights law. The development
of international human rights law in the last half-century is regarded as undeniable progress.
Natural scholars believe in human rights, and historically they have set up the parameters
within which human rights came to be conceived and debated. Traditionally, they have
represented the human rights orthodoxy.323
The orthodoxy is increasingly moving towards what Dembour calls the deliberative school.
These scholars tend to reject the natural element on which natural scholars base human rights.
They claim human rights come into existence through social agreement.324 All rights are
extrinsic to individuals and groups in that they are created and attached to legal persons by
external forces, through legislative acts and/or judicial decisions. This kind of legal positivism
leaves space for a social dimension as regards the development of rights and their attachment
to their bearers, whilst natural law theory refers to divinations of one kind or the other.325 Ife
calls this tradition ‘state obligations tradition’ according to which human rights exist only
when there are mechanisms in place to provide for their protection.326 Rights depend for their
315
An-Na’im, “Conclusion”, supra note 283, at 430-431. See also Paul Gready, “Introduction” in Gready (ed.),
Fighting for Human Rights (London: Routledge, 2004) 1-32, at 3.
316
Marie-Bénédicte Dembour, “What Are Human Rights? Four Schools of Thought”, 32 Human Rights
Quarterly (2010) 1-20, at 2.
317
Ibid. Surprisingly, Stenner finds an overlap between how experts define human rights (as described by
Dembour) and the views expressed by non-experts. See Stenner, “Subjective Dimensions of Human Rights”,
supra note 314, at 1227.
318
The concept of natural law, which is based on a tradition stretching from antiquity to modernity, claims an
absolute authority for some basic normative principles that are said to have priority over all ‘human’ legislation.
The natural law tradition generally appears as one of the most important sources of human rights in Western
tradition. Bielefeldt, “Philosophical and Historical Foundations”, supra note 295, at 10.
319
Dembour, “What Are Human Rights?”, supra note 316, at 2-3.
320
Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy for Institutional Power”, 1 Humanity,
(2011) 47-57, at 48.
321
Dembour, “What Are Human Rights?”, supra note 316, at 3.
322
Donnelly, “International Human Rights”, supra note 293, at 42. Emphasis added.
323
Dembour, “What Are Human Rights?”, supra note 316, at 5 and 9.
324
Ibid., at 3.
325
Anthony Woodiwiss, “The Law cannot be enough: Human Rights and Limits of Legalism”, in Meckled-
García & Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and
Human rights Law (London: Routledge, 2006) 32-48, at 36.
326
Ife, Human Rights from Below, supra note 8, at 74.
52
protective effectiveness on the nature of wider sets of social relations and developments
within them.327 This school stresses the limits of human rights and although they would like
human rights to become universal they recognise that this will require time and will happen
only through the global adoption of the liberal values they express. Whether this will happen
or not remains to be seen.328
Similar to the natural scholars, the deliberative scholars tend to have great faith in the
potential of human rights law. They, however, underline that the human rights normative
system is in the making. Merry writes: “human rights law is far from being a consistent and
coercive system of law. Rather, it is a fragmentary and largely persuasive mechanism very
much in the making.”329
The most common definition of human rights is probably a mixture of natural and deliberative
schools. An-Na’im operates with this kind of definition according to which human rights are
“claims to which all people are entitled as of right by virtue of their humanity”, without
distinctions on such grounds as sex, race, colour, religion, language, national origin or social
group. He locates these rights and their implementation in the social and political realm of
human affairs, and as such require the allocation of resources. The basic concept of rights can
only be realised through some form of wide-scale political organisation, i.e. the state, which is
capable and willing to undertake such functions.330
The third school mentioned by Dembour is the so called protest school. Protest scholars are
concerned first and foremost with redressing injustice. They hold that human rights are
realised through a fight for their realisation.331 Zeleza reminds the reader that apartheid was
not ended by a book or a court case, and neither were colonialism nor slavery, implying that
human rights are not the outcome of concepts but of conflicts, of politics rather than
philosophy, and instigations rather than insights.332 Similarly, Stammers writes that the
emergence and development of human rights needs to be understood as part of social
movement struggles against structures of power.333
In the protest school, human rights are seen as rightful claims made by or on behalf of the
poor, the unprivileged, and the oppressed. Human rights claims allow for the status quo to be
contested in favour of the oppressed.334 These scholars maintain that, in the words of Upendra
Baxi, “suffering and repressed people remain the primary authors of human rights values and
visions”.335 Baxi continues to point out that human rights norms and standards, however, also
“entail ‘participation’ by national, regional, and global political, bureaucratic, and institutional
actors”. These actors tend to use human rights for the ends of governance, thereby
transforming human rights into a means to the end for practices, processes and institutions of
governance.336
327
Woodiwiss, “The Law cannot be enough”, supra note 325, at 37.
328
Dembour, “What Are Human Rights?”, supra note 316, at 9.
329
Merry, Human Rights and Gender Violence, supra note 287, at 227.
330
Abdullahi A. An-Na’im, “Possibilities and Constraints of Legal Protection of Human Rights under the
Constitutions of African Countries” in Abdullahi A. An-Na’im (ed.), Universal Rights, Local Remedies (London:
Interrights, 1999) 5-24 at 7-8.
331
Dembour, “What Are Human Rights?”, supra note 316, at 8.
332
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 7.
333
Stammers, Human Rights and Social Movements, supra note 4, at 2.
334
Dembour, “What Are Human Rights?”, supra note 316, at 3.
335
Baxi, “Politics of Reading”, supra note 7, at 184. Emphasis added.
336
Baxi, “Politics of Reading”, supra note 7, at 191. See also Stammers, Human Rights and Social Movements,
supra note 4, at 3.
53
Protest scholars often distrust human rights law and thereby attract mostly human rights
activists and activist-scholars.337 There exists a very diverse field of activists and researcher
activists, and not all of them distrust human rights law. The contributors, most of whom are
activist scholars, to the book Fighting for human rights, do not, for example, express any wide
scale distrust towards human rights law.338
The last school in Dembour’s model is the discourse school that is, according to Dembour,
characterised by its lack of relevance towards human rights (I believe Dembour misinterprets
discursive scholars in this regard as I will explain below). These scholars recognise that the
language surrounding human rights has become a powerful language with which to express
political claims, but they do not view human rights as given nor that they constitute the
definitive answer to the ills of the world.339 Therefore, they believe that human rights law is as
good or as bad as any other law. It must always be judged in each situation anew.340
However, these scholars tend to allude to the shortcomings of human rights discourse: it does
not deliver what it promises, namely, equality between human beings. They often observe and
describe the contradictory features of human rights discourse and they call for a re-evaluation
of the human rights language.341 Discursively oriented scholars tend to view ‘rights as
culture’, proposing that “the rights discourse embodies certain features that anthropologists
recognize as constituting culture.” Rights are understood as rights talk, rights thinking, rights
practices.342
Dembour refers to Makau Mutua as a representative of the discursive school. Mutua claims
that the human rights movement needs to realise that it is young and therefore has an
“experimental status, not a final truth.”343 In his work, Mutua “presents a view of human
rights that questions the assumption of the major actors in the human rights movement.” It
questions “the mythical elevation of the human rights corpus beyond politics and political
ideology.”344 Mutua moreover points at the paradox of human rights discourse: it seeks to
foster diversity and difference, but only so long as it is exercised within certain limits, that
according to Mutua is the ‘liberal paradigm’. He calls for an urgent revision of human rights
so that the ideals of difference and diversity can have a true meaning. Seeing human rights
norms as frozen and fixed is not in the long-term interest of the human rights movement.345 In
other words, Mutua raises a number of critical questions but he does so because he believes
human rights are hugely important – not because he sees them as lacking relevance, a feature
that Dembour claims belongs to discursive scholars.
Recent anthropology of human rights has shown that, when the idea of human rights is
rendered discursively, human rights discourse does not always homogenise legal or normative
practice. Instead, Mark Goodale, who writes about human rights discourse in Bolivia, finds
that it “transforms the terms of reference through which the legal mediates social, political,
and economic relations” and “creates new conditions in which individuals or groups can
337
Dembour, “What Are Human Rights?”, supra note 316, at 6 and 19.
338
Gready, “Introduction”, supra note 315, at 8.
339
Dembour, “What Are Human Rights?”, supra note 316, at 4.
340
Ibid., at 6.
341
Ibid., at 8 and 10.
342
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 11.
343
Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania
Press, 2002) at 4.
344
Ibid., at 2.
345
Ibid., at 3-4.
54
organize social resistance.”346 Rather than suppressing (or homogenising) normative diversity,
the arrival of human rights discourse has introduced the idea that individuals and groups have
the right to organise in ways that respect their dignity and diversity.347 This shows that when
human rights ideas enter the local level, not as abstract universal ideals, but as rights talk,
rights thinking, and rights practice they can find new limits. The way local groups use human
rights also has an impact on the global human rights discourse, an issue I will return to when
discussing who gives meaning to human rights.
Many critical authors want to acknowledge the importance of the international legal human
rights framework, but at the same time point out that the global social movements for social
justice has challenged aspects of this system, thereby contributing to its evolution and
reformulation. They refer to indigenous movements that have called for a multicultural
reconstruction of human rights (respecting diversity), to balance the liberal and individualist
bias of the existing human rights system; to grassroots movements that have contested the
traditional status of the state as the sole actor in the human rights regime; and to the feminist
movement that has questioned the patriarchal character of the human rights tradition and
worked for new instruments and conceptions.348 The human rights practices of these
movements are important as a research field in the discursive tradition.
That human rights do not represent a final truth is the same view as is held in the constructed
rights tradition. Within this tradition the starting point is that human rights are constantly
being negotiated, defined and redefined at all levels of society.349 Klotz and Lynch write that
“dominant actors can agree on what constitutes human rights at a particular point in time, but
these meanings are contested (often by marginalized actors) and are inherently unstable.”350
To many this view is threatening because stability, or at least a stable core, is seen as a virtue
and necessity in the human rights system. At the same time, diversity is also seen as a virtue
and the human rights movement is struggling with trying to achieve stability and ‘core
content’ of rights while at the same time upholding the image of being a diverse and inclusive
movement.
In the constructed rights tradition, human rights are seen as contextual and dynamic, rather
than universal and stable. The constructed rights tradition is a postmodern critique of
traditional constructions of human rights, rejecting the idea of universal human rights as
static, natural or somehow god-given. Human rights as discursively constructed sees human
rights as a discourse that is changing and evolving but with universal elements,351 as we will
see. Human rights are grounded in lived experience; everyday life is seen as a process of
negotiating and renegotiating regarding shared assumption about human rights and
responsibilities that come with them. This perspective raises challenging questions about
universality and context, which I will come back to later in this chapter. This tradition
underlines people’s agency in human rights protection and realisation,352 something it has in
common with an actor-oriented approach to human rights that will be presented below.
346
Mark Goodale, “The Power of Right(s): Tracking Empires of Law and New Modes of Social Resistance in
Bolivia (and Elsewhere)”, in M. Goodale & S. E. Merry (eds), The Practice of Human Rights: Tracking Law
Between the Global and the Local (Cambridge: Cambridge University Press, 2007) 130-162, at 158.
347
Ibid., at 159.
348
See Boaventura de Sousa Santos and César A. Rodríguez-Garavito, “Law, Politics, and the Subaltern in
Counter-Hegemonic Globalization”, in de Sousa Santos & Rodríguez-Garavito (eds) Law and Globalization
from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005). 1-26, at 20.
349
Ife, Human Rights from Below, supra note 8, at 76.
350
Klotz and Lynch, Strategies for Research, supra note 1, at 13.
351
Ife, Human Rights and Social Work, supra note 3, at 200.
352
Ife, Human Rights from Below, supra note 8, at 76-77.
55
The present author finds that the discursive understanding of human right as social
constructions is the best attempt to capture current reality of the social world we live in.
However, as Dembour points out, the four schools are not fixed categories that neatly and
perfectly describe single track thought processes,353 and this study has been inspired by
academic literature representing all four traditions presented above. For the purpose of
understanding the role of human rights in development practice the discursive understanding
of human rights is, however, most helpful.
An actor-oriented approach to human rights from below
This study has been inspired by what Celestine Nyamu-Musembi calls an ‘actor-oriented
approach to human rights’. Jim Ife writes about what a from below perspective on human
rights and community development means and his account is a good complement to the actor-
oriented perspective on human rights. In the actor-oriented model, there are no fixed
definitions of the human rights concept. Scholars such as Mahmood Mamdani argue for
moving towards a conception of rights that is produced in a concrete conceptualising of the
wrongs in each situation and context. Such an analysis leads to an understanding of rights
organic to the specific realities, and not a mechanical idea “as if out of a textbook”, from the
Western historical experiences.354 Theoretically, this perspective is close to the ‘constructed
rights tradition’, in which it is suggested that human rights are constantly being negotiated,
defined, and redefined while firmly grounded in the lived experience of the actors
themselves. The constructed rights tradition can be placed within the discourse school.
However, an actor-oriented approach also has features similar to the ideas presented in the
protest school.
In these approaches it is accepted that “rights are shaped through actual struggles informed by
people’s own understandings of to what they are justly entitled.”355 In the actor-oriented
perspective rights are understood as “claims (of one person or group on another person, group
or institution) that have been legitimised by social structures and norms.”356
Nyamu-Musembi observes that “looking for the meaning of rights from the perspective of
those claiming them transforms defined normative parameters of human rights debates,
questions established conceptual categories and expands the range of claims that are validated
as rights.”357 This is a defining feature of the protest school and is in opposition to what Baxi
calls “human rights as ethical imperatives”, a view according to which ‘human rights’ are not
thought of in terms of political practices but rather an ethic of human rights that insists on
what communities and individuals ought to desire.358
From an actor perspective, it is important to “start from where the doers are and see the world
through their eyes.” Participation as consultation is not enough: ‘doers’359 need to be in the
drivers’ seat in order to make their actions and experiences their own.360 Ellerman warns
against professionally guided programmes of social engineering that deliberately try to
353
Dembour, “What Are Human Rights?”, supra note 316, at 4.
354
Mahmood Mamdani, “Social Movements and Constitutionalism in the African Context”, Working Paper,
Centre for Basic Research, Kampala, Uganda, 1989, at 7.
355
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41.
356
Moser and Norton, To Claim Our Rights, supra note 46, at 4.
357
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41.
358
Upendra Baxi, The Future of Human Rights (Oxford: Oxford University Press, 2002) at 7.
359
Ellerman uses the concept ‘doers’ but ‘actors’ can also be used.
360
Ellerman, “Helping Self-help”, supra note 271, at 572, 575-576.
56
impose someone else’s will on the doer.361 In human rights and development practices there
are many examples of such programmes. Researchers Turnbull, Hernández and Reyes
exemplify this fundamental dilemma through using an actor-oriented approach in analysing
assistance programmes for street children. Their data show that the interventions and services
analysed by the researches were utilised by the street children in their own way and later
modified by the helpers trying to make the children ‘use them correctly’ – only to discover
new adaptations on the part of the children. Professional helpers, with their services, try to
impose upon the children, the outsiders’ idea of ‘help’ and ‘rehabilitation’. However, the
children have their own ideas. The result is a continuous battle that keeps the children on the
streets.362 Good intentions are not enough. The conclusion of the researchers is that
programmes must construct relationships and strategies which do not force the child to
renounce his or her identity in order to receive help.363 This is a valid point in any programme
that seeks to give assistance to a person or group of persons living under challenging
circumstances. Often it comes down to the difference between a top-down model of working
and a ‘from below’ perspective.
The conventional ‘from above’ approach to professional assisting usually means privileging
of professional expertise over the experience of others. The idea of dialogical praxis, building
on the work by Paulo Freire364 requires that both the professional human
rights/development/social worker and those with whom he or she works are seen as having
equivalent wisdom and expertise. Naturally, professional workers will have specialised
knowledge and skills but the person/s they work with have a range of knowledge, skills, and
experience that the workers lack: expertise that comes from lived experience and survival
skills. Dialogical praxis requires shared knowledge and mutual learning, and acting together
toward achieving human rights.365
In human rights from the below approach, human rights are defined, negotiated, and enacted
within different contexts. Human rights work becomes primarily about culture and
relationships within communities, families, households, workplaces, and public spaces.366 In
a human rights-based approach to local development it is usually natural to view human rights
work in this way (‘rights as culture’). In this context, it is necessary to have an open mindset,
to listen rather than propose solutions. Having a ridged and fixed definition of the human
rights concept (‘expert knowledge’) usually prevents a meaningful dialogue and therefore an
actor-oriented perspective may be helpful.
However, trusting a process directed by the actors alone can lead to exclusion and
discrimination and there is a need for a human rights-based approach in which a human rights
framework can place some limits on self-direction. A fundamental requirement is that the
human rights of all people, whether part of the particular group of actors or not, are respected
in the process.367 In addition, the claimed right should be seen as either aspiring to apply to all
of humanity or as applying to people from specific disadvantaged groups.368 Moreover, since
no local context is devoid of unequal power relationships, it is important to be aware who is
defining the issues in a rights language. Merry points out that often activists translate rights
361
Ellerman, “Helping Self-help”, supra note 271, at 564.
362
Bernardo Turnbull, Raquel Hernández and Miquel Reyes, “Street Children and Their Helpers: An Actor-
Oriented Approach” 31 Children and Youth Services Review (2009) 1283-1288, at 1283.
363
Ibid., at 1287.
364
Paulo Freire, Pedagogy of the Oppressed (New York: Continuum, 1993, first edition in 1970).
365
Ife, Human Rights and Social Work, supra note 3, at 151-152.
366
Ife, Human Rights from Below, supra note 8, at 139.
367
Ibid., at 124.
368
Ife, Human Rights and Social Work, supra note 3, at 10.
57
claims in a way that is relevant to the life situations of the people involved. Often,
international perspectives are translated ‘down’ more than grassroots perspectives are
translated ‘up’ – and there is a real risk that e.g. women’s own experiences are not heard in
the process.369
Who gives meaning to human rights?
When I write about ‘giving meaning to human rights’, I do not mean norm creation, i.e., the
drafting of new internationally recognised human rights norms. I am primarily referring to
individuals and groups giving meaning and content to the human rights concept as they set out
to achieve rights that are meaningful to them. This is not only about actors pushing for new
legal interpretation of existing norms, although this is part of the meaning-giving process. The
process does not take place in a vacuum: the legal documents defining human rights and the
structures surrounding the international human rights system naturally influence how actors
ultimately give meaning to human rights, and the kind of locally manifested interpretation of
the human rights concept we will observe. Human rights are always interpreted and
understood in a local context and these local human rights discourses are relevant when
understanding the role human rights play within various contexts.
‘Human rights from below’ operates from a starting point where human rights are
constructions defined by human beings in social, political, and cultural contexts – and it is
what Jim Ife calls the act of definition that is the primary concern.370 I prefer to call this
process a ‘meaning-giving-process’ instead of a ‘defining-process’. As Koskenniemi points
out: “The interpretative techniques lawyers use to proceed from a text or behaviour to its
“meaning” create (and do not “reflect”) those meanings.”371 My starting point is that the
meaning of human rights is created in social, political, and cultural processes, not only by
lawyers and human rights experts but also by rights-holders claiming human rights. However,
actors have unequal power to shape and reshape meanings in these fields. Moreover, words
may be interpreted differently by different actors such as by activists and their targets,
implying that there are limits to the capacity of the ‘producers’ of discourses to control the
meaning given to words and signs.372 ‘Meaning’ is constantly created and constantly
challenged – at all levels. The local/national and transnational levels interact. Consensus is the
result of a hegemonic process in which some actors have made their position seem the
universal position.373
Because of these tensions, I agree with Ife that the questions of who defines the human rights
concept, and who is excluded, are important. In what context does this process take place?374
In the deliberative school, that is dominating human rights discourse at the moment, human
rights are accepted as being defined in legal documents and agreements. These are drafted and
agreed upon by small groups of people: politicians, diplomats, academics, opinion leaders and
some human rights activists. For a long time, they were predominantly privileged white
men,375 and particularly during the formulation of UDHR representatives of only a few states
dominated the scene (the cluster of Western and European states around the United States,
369
Merry, Human Rights and Gender Violence, supra note 287, at 216.
370
Ife, Human Rights from Below, supra note 8, at 134.
371
Koskenniemi, From Apology to Utopia, supra note 301, at 597. Emphasis in original.
372
See Sally Engle Merry, “Transnational Human Rights and Local Activism: Mapping the Middle”, 108
American Anthropologist (2006) 38-51, at 41-41.
373
Koskenniemi, From Apology to Utopia, supra note 301, at 597.
374
Ife, Human Rights from Below, supra note 8, at 134.
375
Ibid., at 126.
58
that dominated the UN). Since 1945, and the adoption of the UDHR, the circle of actors
involved in the human rights movement, and also in standard setting, has expanded rapidly.376
Recently, the voices of women and people from non-Western backgrounds have also gained
influence in human rights discourse and have impact on how human rights are defined in
documents. However, human rights still remain largely a discourse of the powerful about the
powerless,377 thereby contributing to a discourse of domination and disempowerment. Human
rights discourse is dominated by the voices of the privileged,378 speaking a specialised, often
technical, language associated with a group of professionals that are part of global elites.379
This inevitably has an impact on how human rights are perceived and applied by less
powerful groups. At the same time, another kind of meaning-giving process is taking place,
largely outside of institutions and agents of international law. Actors such as Oxfam, together
with local groups, also contribute to giving meaning, or perhaps more accurately, they
challenge the dominant meaning given to human rights when they generate completely new
rights and reformulate existing rights in a way that makes sense to the people they work
with.380
The international movement for women’s human rights is another example of how activists,
‘from below’, influence the norm creating processes as well as the interpretative processes of
international human rights law.381 When reading about grassroots women’s groups one
receives the impression that the way human rights have been defined in international legal
agreements has always been resisted by these groups. They have always pushed for new
interpretations and also new legal norms.
Some even claim that this is the main value added: so far legal strategies to secure women’s
human rights have not brought about radical social change, but they have challenged
dominant social meanings and understandings of gender, difference, culture, sexuality as well
as the very meaning of human rights.382 This is of central importance as grassroots women’s
groups are not satisfied with a narrow, legalistic and formalistic understanding of the human
rights concept. I agree with Temma Kaplan that “we need a new language to explain what
grassroots women’s groups mean by human rights.”383 This is true not only for women’s
human rights, but also for other groups who have been marginalised in international and
domestic processes of norm creation and interpretation. An actor-oriented approach to human
rights questions the position of ‘experts’ as sole agents in the process of meaning-giving; it
376
Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, supra note 296, at 575.
377
Ife, Human Rights from Below, supra note 8, at 126. Emphasis in original. Merry also reminds us of the
urgency to include women in the making of the human rights framework so that we can move toward disrupting
the patriarchal shape of that framework. Merry, Human Rights and Gender Violence, supra note 287, at 231.
378
Ife, Human Rights and Social Work, supra note 3, at 117-118.
379
See Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley:
University of California Press, 2005) at xviii; Robert Archer, “The Strengths or Different Traditions: What Can
Be Gained and What Might Be Lost by Combining Rights and Development?”, 4 Sur International Journal on
Human Rights Law (2006) 81-89, at 86.
380
In the Strategic Plan of 2001 Oxfam committed itself to working for five rights: the right to a sustainable
livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to an
identity.
381
See Brooke Ackerly, Political Theory and Feminist Social Criticism (New York: Cambridge University
Press, 2000) 143.
382
Ratna Kapur, “Revisioning the Role of Law in Women’s Human Rights Struggles”, in Meckled-García &
Cali (eds), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human
rights Law (London: Routledge, 2006) 101-116, at 110-111. Emphasis added.
383
Temma Kaplan, “Women’s Rights as Human Rights: Women as Agents of Change”, in Marjorie Agosín
(ed.), Women, Gender, and Human Rights: A Global Perspective (New Brunswick: Rutgers University Press,
2001) 191-204, at 195.
59
contributes to rethinking and reframing human rights, and thereby also gives human rights
discourse a new language.
Concluding remarks
Writing from an actor-oriented perspective is the only way I, as an outsider, can write about
human rights in development work in Malawi, because it is a completely new social setting
for me. My argument is that human rights can play a meaningful role in development practice
if the understanding of the human rights concept is rooted in the lived realities of the actors
claiming them. At the community level there should be a public dialogue about the meaning,
source, and authority of human rights as well as forms and strategies for claiming them and
making them real in the everyday lives of the people. Having said this, the actor-oriented
approach does pose certain challenges. When actors living in a resource constrained
environment come together to the discuss development agendas and priorities they tend to
prioritise short-term needs instead of striving for long-term changes in structure and policy.
It is also important that some core values and ideas embedded in the legal documents that
constitute human rights law, such as autonomy, choice, bodily integrity, and equality,384 are
maintained and respected in the process. There should also be an aspiration of universality:385
that what constitutes ‘our’ human rights also constitutes ‘your’ human rights. However,
before going into the universality question we will examine some other debates that are
important for our understanding of why a conventional definition of human rights is too
limited for the purpose of contesting the status quo in favour of less powerful groups.
2.2.4 Human rights and agency
Norman Long, the founder of the actor perspective, defines agency, as “the knowledgability,
capability and social embeddedness associated with acts of doing (and reflecting) that impact
upon or shape one’s own and other’s actions and interpretations.”386 In general terms, agency
assumes that the individual actor has the capacity to process social experience and to find
ways of coping with life, even under the most extreme forms of coercion.387 Individuals or
networks of people have agency, and they may also attribute agency to objects and ideas,
which can shape their perceptions of what is possible.388 Human rights can potentially be an
idea that expands perceptions of what is possible.
The theoretical foundations for studies on agency come from Giddens, who linked agency to
power, saying that “an agent ceases to be such if he or she loses the capacity to ‘make a
difference’, that is, to exercise some sort of power.”389 Action is crucial for agency; and action
involves power in the sense of transformative capacity. According to Giddens, action depends
on the capability to make a difference. What is important is that when circumstances are such
that an individual (or group) has ‘no choice’ this is not to be equated with dissolution of
action as such.390 Having the power to make a difference can, under circumstances of social
constraint, be used to regulate one’s own inner state of being, rather than outer circumstances
384
Sally Engle Merry refers to inter alia these values in Human Rights and Gender Violence: Translating
International Law into Local Justice (Chicago: The University of Chicago press, 2006) at 221.
385
This concept is used by Ife, Human Rights from Below, supra note 8, at 213.
386
Norman Long, Development Sociology: Actor Perspectives (London: Routledge, 2001) at 240.
387
Ibid., at 16.
388
Ibid., at 240-241.
389
Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Cambridge: Polity
Press, 1984) at 14.
390
Ibid., at 15.
60
or events. Hirsch and Lazarus-Black have a dual meaning for ‘state’ as “institutionalized
political order” and “condition of being”.391
Agency scholars tend to put emphasis on the positive possibilities of purposive human action
and the transformative potential that comes with this. For example Hickey and Mohan’s
concept of radical political citizenship builds on the tradition of seeing agency as a range of
“sociopolitical practices, or expressions of agency, through which people extend their status
and rights as members of particular political communities, thereby increasing their control
over socioeconomic resources”.392 Cleaver warns that believing too much in active exercise of
agency through purposive human action and its transformative potential may, however, lead
to that we romanticise procrastination as resistance. He points out that decision-making
processes and the exercise of agency in these contexts may be contradictory in their social
effects; there are complex constraints on the exercise of agency, especially for poor and
marginalised individuals and groups.393 I agree with Cleaver that in all social processes that
potentially lead to transformation there are transformation and tyranny, solidarity and conflict,
articulation and mutedness, enablement of agency and constraint of structure.394
My position is that of constructivist research which assumes that people, who have agency,
are both socialised into their situations and capable of transformative actions.395 As human
beings they have purposes and goals, or ‘intentions’. These intentions affect whether and
when people choose to take transformative actions that delegitimise, destroy or rebuild
structures.396 Therefore, agency is not seen as being in opposition to structure, as is often the
case.397 Actions taken by actors can support or oppose dominant discourse. New discourses
may shift people’s worldviews.398 This is not, however, always a result of conscious action.
“People consciously and unintentionally replicate and challenge institutionalized routines and
prevailing assumptions”.399
Human rights are sometimes celebrated as giving agency to ordinary people and groups – but
I claim that it is doubtful that agency is possible if human rights are seen as a system that has
already decided what people ‘ought to desire’. Speaking one’s desires and naming the
direction of change one would like to see is crucial for agency. Baxi relates agency to the
questions: “Who speaks through us when we speak about human rights? And on whose behalf
may we speak?”400 These are important questions especially in the development context when
human rights are translated into locally relevant terms.
391
See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 1 and 13.
392
Gils Mohan and Sam Hickey, “Relocating Participation within a Radical Politics of Development: Critical
Modernism and Citizenship”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 59-74, at 66. See also Frances Cleaver, “The Social Embeddedness
of Agency and Decision-Making”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 271-277, at 271-272.
393
Cleaver, “The Social Embeddedness of Agency”, supra note 392, at 272-273.
394
Ibid., at 276.
395
Klotz and Lynch, Strategies for Research, supra note 1, at 59.
396
Ibid., at 45.
397
Stammers discusses the agency-structure problem in Stammers, Human Rights and Social Movements, supra
note 4, at 25. Sztompka makes a distinction between ‘sociology of systems’ (i.e., structure) and ‘sociology of
action’ (i.e., agency). See Piotr Sztompka, Trust: A Sociological Theory (Port Chester: Cambridge University
Press, 1999) at 1. The discussion on agency-structure is also related to power (as ‘power over’ and ‘power to’)
and empowerment, see chapter 2.4.7.
398
Klotz and Lynch, Strategies for Research, supra note 1, at 44.
399
Ibid., at 7.
400
Baxi, The Future of Human Rights, supra note 358, at xiii.
61
People living under difficult conditions have often, but not always, abandoned the idea that
they ‘can make a difference’. Therefore, if agency is the starting point for development, and it
often is claimed that it is, it is important to put these people back in the drivers’ seat when
action is planned for and when claims are made. However, structural obstacles and social and
political processes often prevent poor people’s claims from being heard, seen, and reflected in
the definition, interpretation, and implementation of rights at the national and local levels, as
stated by Moser and Norton.401 When political space is opened up, it allows different
configurations for human agency and offers differing possibilities to challenge the status quo.
By ‘stretching’ the political space in which individuals and groups are able to exercise their
rights and participate in decisions that affect their lives,402 opportunities for agency are
created.
However, many people all over the world are unwilling to assume agency and prefer to be
‘passive beneficiaries’, maybe because they have been treated as such all their lives.
Sometimes structures and discourses used by development and human rights institutions
reinforce the victimisation instead of creating conditions for agency.
2.2.5 The political element of human rights
Academics and activists understand the role of ‘politics’ in human rights discourse in very
different ways. The way the notion ‘political’ is used here is not to suggest that human rights
commitments are nothing more than a reflection of a states’ power and interests403 (policy-
oriented ‘realism’). Instead this chapter operates from the starting point that human rights,
especially through social movements, have become both the object of political struggle and a
mode of political action.404 There is, however, still some resistance against seeing the political
character of human rights. Mutua argues for a need to become conscious of how the
abstraction and apoliticisation of human rights “obscure the political character of the norms”
human rights discourse seeks to universalise,405 and he is not alone in raising these arguments.
In order to understand the debate about the political or apolitical character of human rights we
need to look back in history. Costas Douzinas goes as far back as feudal society, claiming that
political power, economic wealth, and social status coincided in the same individual during
this era. One of the main innovations of natural rights was to remove politics from society,
and depoliticise the economy, as a way of bringing to an end the automatic identification of
political leadership with the economically dominant classes. As a result, politics became
“confined into the separate domain of the state.”406 Over time, as human rights expanded to
touch almost every part of daily life and politics, the main contemporary effect of human
rights, Douzinas claims, “is to depoliticize politics itself.”407
Here he refers to a distinction between ‘politics’ and ‘the political’, which builds on the
insights of the Frankfurt School regarding the managerial and anti-ideological direction of
401
Moser and Norton, To Claim Our Rights, supra note 46.
402
Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note 70, at 261 and 264.
403
Compare with Laurence R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash against the Human Rights Regimes”, 102 Colombia Law Review (2002)
1832-1911, at 1842.
404
Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (UK: Routledge-
Cavedish, 2007) at 101.
405
Mutua, Human Rights: A Political and Cultural Critique, supra note 343, at 3.
406
Douzinas, Human Rights and Empire, supra note 404, at 101.
407
Ibid., at 102.
62
parliamentary politics in the West.408 The way I understand this is related to what
Koskenniemi refers to when he writes that “under the liberal theory of politics […] the point
of law is to lead society away from politics, understood as an effort to move from a state of
contestation and conflict into one governed by rational rules, principles and institutions.”409
Koskenniemi’s own view is that international law is always ingrained in “the system of
distribution of material and spiritual values in the world.” When this is accepted, the task of
anyone wanting to use international law or human rights law as a counter-hegemonic strategy
(Koskenniemi refers only to lawyers, but writing from an actors’ perspective this is too
narrow) “would no longer be to seek to expand the scope of law so as to grasp the dangers of
politics but to widen the opportunity of political contestation of an already legalized
world.”410
Some argue that this is the main value added by human rights-based approaches to
development; they can potentially repoliticise areas of development work, 411 i.e. create
opportunities for political contestation. The question of power structures becomes very
concrete when one starts to view marginalised individuals and power holders as rights-holders
and duty-bearers. However, the trend of politicisation of humanitarianism and the fact that
some NGOs have embraced human rights as politics has also been criticised. Here we should
be clear that there are several trends taking place side by side and the
depoliticisation/repoliticisation is a nuanced one, dividing NGOs and other actors internally
and from one another.412
Other actors find the rhetoric of human rights appealing precisely because of its apolitical
nature.413 There can be no definitive conclusions drawn on this issue and there is a constant
tension between the tendency to use human rights as a seemingly neutral way of improving
governance, and using human rights to renegotiate political processes and challenge
development policies contributing to continuous non-realisation of human rights for the
poorest people.
Anthropologist Harri Englund has written extensively on the role of human rights talk in
governance in postcolonial states. He observes that while the situation of human rights is
invariably political, various participants in human rights discourse, deliberately or not, act in a
way that contributes to its depoliticisation. For example, the human rights projects that
Englund has studied avoided talking politics in a context where talk about politics was the
nation’s favourite pastime.414 This reflects the resistance against admitting a shift to politics in
the human rights movement. Human rights have become the core language of a new politics
of humanity that is beyond old ideological contests of left and right.415
However, in various countries we start to see examples indicating that international and
national NGOs involved in rights-based community development have been forced to shed
their “apolitical” attitude and become involved in advocacy about policies to facilitate spaces
408
Douzinas, Human Rights and Empire, supra note 404, at 102.
409
Koskenniemi, From Apology to Utopia, supra note 301, at 599.
410
Ibid., at 615. Emphasis added.
411
Slim, “A Response to Peter Uvin”, supra note 57, at 3; Cornwall and Nyamu-Musembi, “Putting the ‘Rights-
Based Approach’”, supra note 44, at 1415-1427; Gready and Ensor, “Introduction”, supra note 70, at 23.
412
Gready and Ensor, “Introduction”, supra note 70, at 33.
413
For example, Jungar and Oinas find that the Treatment Action Campaign in South Africa often uses a de-
politicizing human rights rhetoric. Katarina Jungar and Elina Oinas, “A Feminist Struggle? South African HIV
Activism as Feminist Policies”, 11 Journal of International Women’s Studies (2010) 177-191, at 187.
414
Harri Englund, Prisoners of Freedom: Human Rights and the African Poor (Berkley: University of California
Press, 2006) at 31-32.
415
Moyn, The Last Utopia, supra note 38, at 227.
63
for disadvantaged and less powerful groups to be heard in governance structures at all
levels.416 What this thesis calls for is to be more conscious and honest about the political
element of human rights.
If human rights are conceived of as only a formal legal project, their counter-hegemonic
potential remains rather limited. It is when human rights are part of a political struggle for
social change, in which law is seen as only one among many possible tools to be used against
oppression, that human rights have empowering potential.
2.2.6 Human rights and legalization
Douzinas ends his chapter on the politics of human rights by stating that exclusion,
domination, and exploitation are brought to the surface and awareness through human rights
claims. Often such struggles, however, frame their resistance in terms of legal and individual
remedies, which, in the case of success, lead to “small individual improvements and a
marginal rearrangement of the social edifice.”417 The way I understand this is that through
framing political claims as legal claims, human rights contribute to depoliticising politics.
Further legalisation of human rights, consciously or unconsciously, hides the political element
of human rights.
For obvious reasons, legal bodies have the authority to define and determine the limits and
extent of legal human rights. Therefore, because the legal sphere and international human
rights law have come to dominate human rights discourse, ‘human rights’ themselves are
often understood in terms of legal provisions. This phenomenon can be called
‘legalisation’.418 There are also other ways of understanding the legalisation phenomena, e.g.
“as a particular form of institutionalization characterized by obligation, precision, and
delegation,”419 but this is outside the scope of this chapter.
The predominant starting point for many studies by social scientists is to accept a legal
definition of human rights.420 This is also the case for studies on the relationship between
human rights and development. Most development agencies operate with some sort of legal
definition of human rights, which would fall between the natural school and the deliberative
school. There are, however, a growing number of international and national NGOs and social
movements that have adopted their own definition of human rights, which departs from
international human rights law. Oxfam is one such organisation. Oxfam sees the potential and
416
For an example from Kenya, see Celestine Nyamu-Musembi and Samuel Musyoki, Kenyan Civil Society
Perspectives on Rights, Rights-Based Approaches to Development, and Participation (Brighton: Institute of
Development Studies, 2004) at 1. Available at http://www.ids.ac.uk/files/Wp236.pdf, visited 10 May 2012.
417
Douzinas, Human Rights and Empire, supra note 404, at 109-110.
418
Saladin Meckled-García and Basak Cali, “Lost in Translation: The Human Rights Ideal and International
Human Rights Law”, in S. Meckled-García & B. Cali (eds), The Legalization of Human Rights:
Multidisciplinary Perspectives on Human Rights and Human rights Law (London: Routledge, 2006) 11-31, at
12.
419
Kenneth W. Abbott et al, “The Concept of Legalization” in Judith L. Goldstein, Miles Kahler, Robert O.
Keohane & Anne-Marie Slaughter (eds), Legalization and World Politics (Cambridge: The MIT Press, 2001) 17-
35 at 17.
420
Basak Cali and Saladin Meckled-García, “Introduction: Human Rights Legalized – Defining, Interpreting,
and Implementing an Ideal”, in S. Meckled-García & B. Cali (eds), The Legalization of Human Rights:
Multidisciplinary Perspectives on Human Rights and Human rights Law (London: Routledge, 2006) 1-8, at 2.
Examples of political and social science studies that use a legal definition include Todd Landman, “Measuring
Human Rights: Principles, Policy and Practice” 26 Human Rights Quarterly (2004) 906-31; Hans-Otto Sano and
Lone Lindholt, Human Rights Indicators: Country Data and Methodology (Copenhagen: Danish Institute for
Human Rights, 2000); Norwegian Agency for Development Cooperation, Handbook in Human Rights
Assessment: State Obligations Awareness and Empowerment (Oslo: NORAD, 2001).
64
power in applying a rights language, but is wary of legalisation. It has formulated a list of
rights which made sense to Oxfam’s staff and counterparts around the world,421 but has no
direct reference to human rights law, although we can see parallels.422 Since the empirical part
of this thesis makes an analysis of an Oxfam programme in Malawi, I find it motivated me to
question whether a legal definition of human rights is the only valid way of approaching the
human rights concept and phenomenon. This study finds that a legal definition of human
rights is too limiting in the context of human rights playing a meaningful role for people
striving to improve their lives (doing ‘development’). A legal definition of human rights is
natural when approaching human rights as obligations of states, including Malawi, but is, for
reasons that will be described below, not sufficient when doing human rights work at the local
level with people and groups.
The starting point for this study is that human rights law is never an end in itself, only a
means. Sometimes other approaches are more effective in reaching an end such as social
justice. It remains an open question whether integrating human rights law into development
efforts is the most effective approach of addressing issues such as inequality, food insecurity,
and promoting social justice. We need empirical evidence showing the value of human rights-
based approaches to development. We also need to know more about how the human rights
concept is translated into local sites of struggles over justice, equality, and resources.
Nevertheless, at times the law in general and human rights law in particular does play an
important role in challenging the status quo and is naturally not irrelevant from the
perspective of this thesis.
2.2.7 Human rights law and change (contesting the status quo)
Hegemony and counter-hegemony
Law has been central to the neoliberal restructuring of the world and as such it is, in the words
of Randeria “a prism through which to capture some of these transformations, and the
resistance to it, in the South.”423 There is a rich scholarly work on power, hegemony, and
resistance indicating that the law is simultaneously a maker of hegemony and a means of
resistance.424 Resistance is evidence that subordinate people are capable of questioning
hegemony through diverse oppositional tactics. Through oppositional ideologies and
behaviour, people confront dominant worldviews. Hegemony and resistance are not mutually
exclusive; usually there are opportunities for resistance (and change) in the same process that
can also transpire to be a factor contributing to structural reproduction.425 Hegemonic
421
Marjolein Brouwer, Heather Grady et al, “The Experiences of Oxfam International and its Affiliates in
Rights-Based Programming and Campaigning”, in P. Gready and J. Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 63-78, at 65.
422
In the Strategic Plan of 2001 Oxfam committed itself to working for five rights: the right to a sustainable
livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to an
identity.
423
Shalini Randeria, “Domesticating Neo-liberal Discipline: Transnationalisation of Law, Fractured States and
Legal Plurality in the South”, Wolf Lepenies (ed.), Entangled Histories and Negotiated Universals: Centers and
Peripheries in a Changing World (Frankfurt a.M.: Campus Verlag) 146-182 at 175.
424
See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 9.
425
Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 8-9.
65
processes and oppositional practices transform people and polities through producing
“contested states”;426 and are therefore inextricably linked to law.427
Ratna Kapur writes that “law is a complex and contradictory discourse”, suggesting that at
times “the process of legalization of human rights has reinforced the subordination of the
‘victim’ of human rights violations”, while at other times “human rights law has been an
important source of resistance and change”.428 Moreover, Mamdani repeatedly highlights that
the discourse on rights is a contradictory one, in both the ‘Western’ and contemporary African
context (the context he writes about). “At certain historical moments, it has been a rallying cry
for popular movements against arbitrary rule; at other moments, it has been the standard used
by privileged minorities that sought a legal umbrella under which to preserve and reproduce
these privileges.”429 Here we come back to the question of discourses of international law and
human rights law as hegemonic and counter-hegemonic. If human rights are to play a counter-
hegemonic function, that is questioning and contributing to reshaping the status quo, it is
important to first be aware of how often they fail to have this function.
Rajagopal argues that counter-hegemonic power includes various types of resistance, and for
human rights discourse it means being engaged in counter-hegemonic struggles ranging from
anti-war protests to market access for agricultural products for poor countries. Human rights,
being “the pre-eminent global moral discourse of our time”, could potentially play an
important role in counter-hegemonic international law – but “instead human rights – or to be
accurate, a broad language of ‘freedom’– has become the foundation for a hegemonic
international law.”430 Furthermore, Koskenniemi claims that international law, and human
rights law as one of its components, more often than not can be seen as maintaining the status
quo. He gives the example of how “contingent and contestable” aspects of the world have
begun to seem “natural and unavoidable” through legal rules that liberate powerful actors. He
asks why concepts and structures of international law, which are in themselves indeterminate,
nonetheless seem to emerge on the side of the status quo?431
One is free to disagree with Rajagopal and Koskenniemi on this issue, but it is hard to deny
that human rights discourse, together with the discourses of good governance and
development, maintain an image of knowing what to do and how to do it in a way that is
superior to other ways. Be it in education, health, or the justice system, human rights, good
governance and development all offer techniques, goals and methods for realising a vision for
reshaping society following the liberal model.432 The denial of what Obiora Chinedu Okafor
calls “African agency in the governance of Africa’s own societies” is widespread and
characteristic of the current international structure in which human rights discourse tends to
play a hegemonic role rather than a counter-hegemonic role. Advancing an actor-oriented
approach to human rights and development would perhaps reveal new opportunities for
human rights to be used as a strategy of resistance, questioning structures of domination and
contributing to agency.
426
Hirsch and Lazarus-Black have a dual meaning for ‘state’ as ‘institutionalized political order’ and ‘condition
of being’. “Contestations over the ‘state of being’ of individuals also implicate social struggles involving
political ‘states’”. See Hirsch and Lazarus-Black, “Performance and Paradox”, supra note 284, at 1 and 13.
427
Ibid., at 13.
428
Kapur, “Revisioning the Role of Law”, supra note 382, at 102-103.
429
Mamdani, “Social Movements”, supra note 354, at 17.
430
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 68.
431
Koskenniemi, From Apology to Utopia, supra note 301, at 225.
432
Rajagopal, “Counter-hegemonic International Law”, supra note 40, at 69.
66
The ‘spiral model’ of human rights change
In legal human rights research there are, as far as I know, no theories of change concerning
the role played by human rights law in processes leading to greater adherence to human rights
standards. International legal scholars tend to focus on success stories of altered domestic
practices to support the assumption that international law is an efficient way to engage in
processes of change. In political science, by contrast, we can find some attempts to develop
empirically testable hypotheses about whether, and under what conditions, legal rules are
effective in changing government behaviour. International relations scholars have generated a
number of theories about the relative importance of different explanatory variables (law is one
of these variables) in changed government practices.433
This study is not concerned only with change defined as altered domestic practices, but sees
social change as a broader process that is more difficult to define and test empirically.
However, one theory of change, the so called ‘spiral model’ of human rights change is
presented below in order to illustrate the need to develop new theories in human rights
research.
The ‘spiral model’ is interesting and relevant for this study because it relies on insights of
social constructivism, meaning that the model of human rights change by Risse, Ropp,
Sikklink et al differs from e.g. rational choice theorists. The authors argue that the social
identities of actors are important factors in the process of change. As actor’s identities can be
reshaped in discursive processes, transnational advocacy networks often engage in
argumentative processes with norm-violating governments. However, this is in itself not
enough for change to occur: sustained improvements of domestic human rights conditions
require domestic institutionalisation of international norms.434 The authors have developed
what they call a “socialization model” to explain the conditions needed for “domestic actors
to internalise the rules and norms emanating from international human rights regimes.”435
This model resonates with what Merry points to as the reasons why states choose to enter into
human rights treaties. She believes these reasons are linked to “claims to civilized status in the
present international order, much as ideals of civilization provided the standard for colonized
countries during the imperial era.”436 Shaming of non-compliant governments is a cultural
system “whose coin is admission into the international community of human-rights-compliant
states.”437
Risse, Ropp, Sikklink et al investigated eleven countries, each of which started in a phase of
repression, even though the degree of human rights abuses varied.438 In the beginning of the
“socialization process” these governments did not perceive any pressure to comply with the
norms, according the findings of the authors. (This is difficult to believe, but maybe domestic
resistance was of a nature that is difficult to investigate after many years.) Risse and Ropp
claim that “it was the task of transnational advocacy networks to create such adaptational
pressure in the first place.” Later in the stages of the ‘spiral model’, they claim that there
began to be resonance between domestic audiences and international human rights norms.439
433
Helfer, “Overlegalizing Human Rights”, supra note 403, at 1834-1835.
434
Thomas Risse and Stephen C. Ropp, “International Human Rights Norms and Domestic Change:
Conclusions”, in Risse, Ropp & Sikkink (eds), The Power of Human Rights: International Norms and Domestic
Change (Cambridge: Cambridge University Press, 1999) 234-278, at 236-237.
435
Ibid., at 271.
436
Merry, “Constructing a Global Law”, supra note 12, at 949.
437
Ibid., at 943.
438
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 240.
439
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 272.
67
(Viewing these findings from an actor-oriented perspective on human rights, it may be the
case that there was resistance already in the first place but this resistance was not framed in a
language that at the time fitted international human rights norms. Relying on research by
Merry, one can assume that there were “mediators” and “translators” who translated
local/domestic concerns into a transnational agenda.440 What was lost and what was gained in
this process one can only speculate about.)
Nine of the eleven countries investigated by Risse, Ropp, Sikklink et al. went through a
“denial” phase when the government rejected the very notion of international human rights
jurisdiction. At the time of publishing their findings (1999), all the countries had moved
towards “tactical concessions”.441 This is the third phase in the spiral, which is characterised
by the fact that “the norm-violating government is forced to make tactical concessions to the
international human rights community.” According the Risse and Ropp, this gives the
domestic opposition opportunity to start its own process of social mobilisation. If it links up
with transnational networks, the government is under pressure ‘from above’ as well as ‘from
below’. If this pressure is sustained, a full implementation of human rights norms is likely to
take place, and this marks the final stage of the spiral model, the so called “rule-consistent
behavior”.442
According to the authors, transnational networks have a dual task in the process of
internalising rules and norms emanating from international human rights regimes into
domestic practices. First, these networks remind “Western states of their own collective
identities as liberal democracies and urge them to act upon these identities in the human rights
arena.” Second, they “teach human rights norms to norm-violating governments.”443 The in-
built assumption is that change is inspired by transnational networks and domestic audiences
follow later on as there starts to be resonance between them and international human rights
norms.444 This conclusion shows how much weight is given to transnational networks as
‘teachers and preachers’ of human rights. They also provide evidence to those who accuse
human rights discourse of being ‘foreign’ or a continuation of imperialism.
The ‘spiral theory’ feels outdated and there is need for theories that suit our contemporary
time when human rights norms are accepted by almost all regimes and human rights rhetoric
is used on all levels by a multitude of actors. In Malawi, human rights (in practice ‘freedoms’)
are talked of and referred to by government as well as non-governmental actors; they have
become part of the official discourse. There have also been revisions of laws in order to live
up to the international treaty provisions (this process is of course far from complete).
However, there is no theory about whether all of this makes a difference to the population.
The question arising from the ‘spiral model’ of human rights change is: what comes after the
fifth and final stage of change (‘norm-consistent behaviour’)? Can human rights be effectively
used as a tool (political and legal) by rights-holders to improve the conditions of their lives? A
certain level of institutionalisation and acceptance of human rights norms is only a first step
and cannot as such be equated with ‘success’ or social change. It might be that human rights
are foremost used by domestic elites for hegemonic purposes.
Moreover, there is need for a theory of change concerning the role of human rights to be
defined more broadly, not only as ‘legal freedom rights’, but as entitlements that groups of
people feel justly entitled to. Studying grassroots women’s groups, and the way they apply
440
See Merry, Human Rights and Gender Violence, supra note 287.
441
Risse and Ropp, “International Human Rights Norms and Domestic Change”, supra note 438, at 235.
442
Ibid., at 238.
443
Ibid., at 271.
444
Ibid., at 272.
68
human rights discourse to achieve change in their lives, would be a good case study to
develop and test a hypotheses concerning the role of human rights as a counter-hegemonic
tool in struggles for social change. I will not develop such a theory here, but I want to
highlight that lack of theories in studying human rights forces researchers to be humble about
the possible role of human rights in domestic processes of change. We cannot assume that
official human rights advancement automatically leads to progress and success.
2.2.8 The question of universality, relativism, particularity and context
Dilemmas and debates
The human rights concept can be meaningful and respectful of the agency of the actors when
working with an actor-oriented perspective on human rights from below, but it is open to
many difficult questions about context and universality.
In the Vienna Declaration and Programme of Action of 1993 human rights were presented as
universal, indivisible and interdependent, and interrelated. It was stated that “[t]he universal
nature of these rights and freedoms is beyond question.”445 However, when one takes part in
scholarly debates as well as discussions at the grassroots level the universal nature of human
rights is far from a settled matter. Behind the solemn statements in UN declarations there is
considerable disagreements and contestations over the meanings attached to the human rights
concept. Moreover, in the real world where people struggle to achieve human rights, things
are messy, complex, and contradictory. In people’s lived experiences human rights are not
necessarily universal and indivisible, nor are they inalienable or inabrogable, two other
principles which often are attributed to the human rights concept.446
The question of whether human rights standards provide a universal standard to be applied
uniformly, or whether they are relevant to the social context has characterised the human
rights movement ever since the adoption of the Universal Declaration.447 In the 1990s the
debate was rather black-and-white: universalists firmly believed that the power of human
rights lies in their universality and human rights should be adopted in all cultural contexts
despite differences in local normative systems. Relativists claimed that human rights ideas
should not be imposed on societies with different value systems.448 As I will show, the debate
has become somewhat more nuanced and the positions are no longer so entrenched. There are
ways around these dichotomous views leading to a more sophisticated way of dealing with
universalism and relativism as well as human rights and culture. I have already called for a
more nuanced way of giving meaning to the human rights concept. Furthermore, I will, in the
following, refer to research that questions conventional ways of defining ‘culture’. However,
as these dichotomous and essentialised views are still strong in the more conventional human
rights discourse I will devote some space to understanding this dilemma.
For many human rights scholars, universality is still beyond question. “Universality is at the
core of the global human rights regime,”449 is a commonly held conception. Yet, Jack
445
Adopted at World Conference on Human Rights in Vienna, 1993, UN doc. A/CONF.157/23, paras. 1 and 5.
446
Ife, Human Rights from Below, supra note 8, at 86. Inalienability means that human rights cannot be taken
away from an individual or group; inabrogability means that they cannot be given away, voluntarily or as trade-
off for some other privilege. Ibid., 84.
447
Celestine Nyamu-Musembi, “Towards an Actor-Oriented Perspective on Human Rights”, in Naila Kabeer
(ed.), Inclusive Citizenship (London: Zed Books, 2005) 31-49, at 32.
448
Merry, “Transnational Human Rights and Local Activism”, supra note 372, at 40.
449
Donnelly, “International Human Rights”, supra note 293, at 31. Bielefeldt, “Philosophical and Historical
foundations of Human Rights”, supra note 295, at 3.
69
Donnelly argues that the question ‘are human rights universal or relative?’ is
misformulated.450 I agree with Donnelly and this is also supported by the evidence from the
field work by Thoko Kaime that reveals the need for a new discursive framework that moves
the debate beyond relativism and universalism. Universalism and relativism are simply
inadequate as analytic tools for describing the role of human rights in social relationships.451
However, before looking at possible solutions to the dichotomy between universalism and
relativism it is necessary to have a better understanding of the dilemmas and why these
debates have been so polarised in human rights discourse.
The ‘natural rights’ argument for universality is that since human rights are not given by a
sovereign and therefore cannot be taken away by a sovereign, nor are they based on criteria
such as age, gender, race or caste, human rights should provide a universal standard.452 An
argument against this view is that the ‘natural rights tradition’ is only one among many
schools of thought behind human rights discourse. According to other views rights are not
natural and eternal but always emergent and historically specific.453
The ‘formalist argument’ for universality is simply that since most states have ratified a
number of binding international human rights treaties, human rights standards are universal.454
For example, Donnelly argues that human rights enjoy ‘international legal universality’
because virtually all states accept the authority of the Universal Declaration and as of the end
of 2009 the six core international human rights treaties had on average 170 parties. This
means that in contemporary international society there is a ‘hegemonic’/authoritative system
of international legal principles that gives an element of universality to internationally
recognised human rights.455 Donnelly, however, admits that this universality can be
relativised by stressing the incompleteness of the human rights system, in the sense that a
number of states continue to resist these hegemonic international norms.456
Despite UDHR being cited today with near-universal approval, we have to keep in mind that
it was a very narrow group of actors that launched the UDHR. Mutua points out that the few
Southern states present in the formulation of UDHR, such as India, Lebanon, Burma,
Pakistan, the Philippines, Ceylon, and Syria, had only recently gained independence. He
reminds us that “the nations that drafted the UDHR directly colonized three quarters of the
earth and enforced brutal, racist, and even genocidal policies in many places.”457 Only four
African countries were members of the UN at the time. It is also relevant that the very concept
of the nation state, with its constitutional order and bill of rights that African societies adopted
after independence, was a colonial imposition – not a result of internal political, social and
economic developments.458 For these reasons human rights lack legitimacy in many African
450
Donnelly, “International Human Rights”, supra note 293, at 32.
451
Thoko Kaime, “‘Vernacularising’ the Convention on the Rights of the Child: Rights and Culture as Analytic
Tools”, 18 International Journal of Children’s Rights (2010) 637-653, at 639 and 642.
452
See Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 32. Bielefeldt calls this a
quasi-biological interpretation or a tendency to see human rights deeply rooted in the Occidental tradition,
according to which the human being has been ‘created in the image of God’, and endowed a special rank above
all other creatures. This is a very apolitical interpretation (compare to the four schools of human rights thinking).
Bielefeldt, “Philosophical and Historical foundations of Human Rights”, supra note 295, at 10-11.
453
“Setting Universal Rights” in Cowan, Dembour & Wilson (eds.), Culture and Rights: Anthropological
Perspectives (Cambridge: Cambridge University Press, 2001) 27-30, at 27; Mutua, “Standard Setting in Human
Rights: Critique and Prognosis”, supra note 296, at 576.
454
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 32-33.
455
Donnelly, “International Human Rights”, supra note 293, at 33.
456
Ibid., at 34.
457
Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, supra note 296, at 576.
458
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 15.
70
societies,459 although the African Charter on Human and Peoples’ Rights adopted in 1981 has
contributed to increasing legitimacy and a growing African human rights discourse. Another
dimension of the legitimacy issue is the tension between elements of African cultural and
religious traditions and certain human rights norms, e.g. in the area of women’s rights,
children’s rights and rights of minority groups. Tensions naturally exist in all societies,
including Western ones, but these tensions seem to be very pronounced in African
societies.460
This is one reason why e.g. deliberative scholars refer to the incompleteness of the
international human rights discourse and make the argument that human rights principles as
currently constituted are not universal because they are shaped by distinctly Western
experience.461 All ideas, including human rights, emerge in a cultural context and cannot be
divorced from it. These cultural contexts vary and change; what will be counted as ‘human
rights’ will inevitably be different in different cultural contexts.462 These scholars, who refer
to the incompleteness of human rights, are using arguments labelled as ‘multicultural
universalism’ or ‘weak cultural relativism’ and claim that human rights could become truly
universal only if as many world cultures as possible contributed to shaping the discourse of
rights. The human rights movement should build on these various contributions rather than
work from a Western/Eurocentric conception of what human rights are.463
Typically there seems to be a contradiction between universalism, in the form of a
“transnational but European-driven conception of rights, and relativism, in the form of respect
for local cultural differences.” Rights and culture are, in this view, seen as possibly mutually
contradictory. However, seen in this way, the universalism/relativism debate essentialises
both culture and rights. In this context, human rights are understood as a Western idea, based
on Enlightenment traditions.464 Culture is understood as a homogenous and integrated system
of beliefs and values.465 This weakens the human rights movement: in the South human rights
advocates try to demonstrate that human rights are indigenous and relevant while “arrogant
outsiders” insist on “imposing Northern models and procedures”. The result is that dictatorial
states dismiss them as imperialist impositions and the energy of the Southern human rights
advocate is wasted.466 This leads to situations of “law in practice” being very different from
“law in the books”, a familiar phenomenon in many countries of the South. This is the case
especially when the latter are foreign legal transplants imported into a very different social
and political context. Attempts to globalise “legal particularities” overlook the fact that laws
reflect a long history of political contestation and compromises. When Western norms and
459
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 15. For an interesting
account on how African states and their legal experts have contributed to the UN human rights system, see
Mutoy Mubiala, “The Contribution of African Human Rights Traditions and Norms to United Nations Human
Rights Law”, 4 Human Rights International Legal Discourse (2010) 210-240.
460
An-Na’im, “Possibilities and Constraints of Legal Protection”, supra note 330, at 16.
461
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 33-34.
462
Ife, Human Rights from Below, supra note 8, at 98.
463
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 33-34.
464
Sally Engle Merry, “Changing Rights, Changing Culture”, in Cowan, Dembour & Wilson (eds), Culture and
Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001) 31-55, at 32. Ife argues
that universal human rights, as conventionally understood, reflect a certain Western Enlightenment view of the
core concepts, ‘humanity’ and ‘rights’, that is inadequate for a more inclusive world where diversity is valued,
not feared. Ife, Human Rights from Below, supra note 8.
465
Merry, “Changing Rights, Changing Culture”, supra note 464, at 32.
466
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 8.
71
practices are diffused globally this does not happen without local translation and also
resistance. 467
In the postmodern world of relativism, multiple voices and fragmented realities, it is
sometimes held that there is no room for a universalist discourse on human rights, especially
since it has traditionally been a top-down discourse, and has difficulty dealing with difference
and diversity. According to postmodern critique the idea of human rights is too tightly
connected to the modernist project, and too western (or Eurocentric) to give a positive
contribution to the future. I agree with Ife that this is a critique we cannot fully ignore.468 I
also agree with the relativists that Western hegemony is a concern.469 However, a discourse of
difference needs to be balanced with discourses of unity, underlining what unites and brings
us together as human beings. A position that denies anything but the contextual, ignores the
fact that despite cultural differences, human beings are connected.470 It is from this
perspective that a discourse of ‘common humanity’ can be appealing and powerful. Due to
problems with the idea of the term ‘common humanity’, which brings us back to the natural
rights tradition, seeking some essentialised, fundamental humanity, Ife suggests ‘shared
humanity’ could be used when indicating commonalities between people. ‘Shared humanity’
can be explored through lived experience, but without identifying the single, ‘common’ form
of human condition applying to everyone.471 Through our ‘shared humanity’ human rights
have a universal element. However, the context in which this is expressed can never be
ignored.
Mahmood Mamdani challenges the debate on whether rights are of Western origin by arguing
that rights are defined by struggle. He makes a simple yet profound and clear observation:
“[w]here ever there was (and is) oppression – and Europe had no monopoly over oppression
in history – there must come into being a conception of rights.”472 He claims that the notion of
rights cannot have any fixed and immutable content; instead the content of rights must vary
from one historical circumstance to another, and from one social context to another.473 As
Nyamu-Musembi points out, when human rights are viewed from this perspective, they are
“both universal and particular: universal because the experience of resistance to oppression is
shared among subjugated groups the world over, but also particular because resistance is
shaped in response to the particularities of the relevant social context.”474 Human rights are
relevant for people living in any cultural contexts, whenever they struggle for justice.475
Africans have their own histories of the struggle for human rights, which are linked, but also
distinct from similar struggles in other parts of the world.476
The authors referred to above have in common the message that it is necessary to stop
thinking of universal/contextual as an either/or dichotomy. We need to explore a way of
thinking about them as both/and.477 This argument moves the debate on universality vs.
467
Randeria, “Domesticating Neo-liberal Discipline”, supra 423, at 163.
468
Ife, Human Rights and Social Work, supra note 3, 200 and 131.
469
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 17.
470
Ife, Human Rights from Below, supra note 8, at 98.
471
Ibid., at 130.
472
Mamdani, “Social Movements”, supra note 354, at 1-2.
473
Ibid., at 2. Bielefeldt notes that the European history of human rights provides only one example of various
obstacles, achievements, and failures in the long-lasting political struggle for human rights. Repeating the
European experience would naturally be impossible. See Bielefeldt, “Philosophical and Historical foundations of
Human Rights”, supra note 295, at 12 and 15.
474
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 43.
475
Bielefeldt, “Philosophical and Historical foundations of Human Rights”, supra note 295, at 15.
476
Zeleza, “Introduction: The Struggle for Human Rights in Africa”, supra note 297, at 7.
477
Ife, Human Rights from Below, supra note 8, at 99.
72
particularism to a new level, an advancement on being trapped in the midst of trying to define
‘culture’ and arguing about into who’s culture human rights ideals fit or who’s culture they
fail to fit. It questions assumptions about opposition between rights and culture that were
fundamental during imperialism and to a large extent still remain part of the human rights
rhetoric.478 The starting point is then that both the concept of ‘culture’ and ‘rights’ are ever-
changing; change rather than stagnation is characteristic of rights and culture.479
‘Culture’ and the universality question
In these debates in particular and in human rights discourse in general there is a need for
conceptual clarification of ‘culture’ in the human rights praxis. Human rights tend to rely on
an essentialised model of culture, and fail to take advantage of the potential of local cultural
practices for change.480 Often ‘culture’ is put into opposition to the universal human rights
project and e.g. ‘Third World women’ are portrayed as victims of their culture in a way that
reinforces stereotypes and cultural essentialism.481 To give a concrete example from the area
of women’s rights: according to ethnographic field research by Merry, when government
representatives, members of the expert committee under the Convention on the Elimination of
all forms of Discrimination Against Women (CEDAW), or the convention itself invoke
‘culture’ in proceedings related to CEDAW, it is mostly as an obstacle to change rather than
as a resource or opportunity for change. According to this view ‘culture’ is fixed, static,
bounded, and isolated.482 The fact that transnational legal processes are engaged with cultural
transformation remains unspoken.483 At the same time, the human rights framework also
includes rights to culture.484 It is rights versus culture as well as rights to culture that have
preoccupied scholars from various fields as well as lawyers, bureaucrats, NGOs and lay
people, and engaged them in debates about the legal and political status which ‘a culture’
should or should not have.485
There are, however, more modern understandings of ‘culture’ as a continuous process of
creating new meanings and practices.486 Nyamu-Musembi argues that both cultural norms and
formal rights regimes offer opportunities as well as challenges in dealing with specific
situations of oppression. In reality, there are no clear cut lines; we cannot place the blame for
human rights violations on culture and pose universal human rights principles embodied in
formal laws as the solution.487 Culture consists of ideas and practices that are not homogenous
but continually changing because of contestation, new ideas, and institutions: “Cultural
discourses legitimate or challenge authority and justify relations of power.”488 Merry views
human rights as a means of producing new cultural understandings and actions. She sees
human rights monitoring processes as a gradual cultural transformation; in these legal settings
what is being produced is ‘culture’.489 However, mainstream social science has often failed to
478
Merry, Human Rights and Gender Violence, supra note 287, at 226.
479
See Kaime, “‘Vernacularising’ the Convention on the Rights of the Child”, supra note 451, at 64.
480
Merry, Human Rights and Gender Violence, supra note 287, at 11.
481
Kapur, “Revisioning the Role of Law”, supra note 382, at 107. See also Rikki Holtmaat and Jonneke Naber,
Women’s Human Rights and Culture: From Deadlock to Dialogue (Cambridge: Intersentia, 2011).
482
Merry, “Constructing a Global Law”, supra note 12, at 946.
483
Ibid., at 974.
484
Article 15 of the ICESCR protects the right of everyone to, inter alia, take part in cultural life.
485
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 4.
486
Merry, “Constructing a Global Law”, supra note 12, at 947.
487
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 44.
488
Merry, Human Rights and Gender Violence, supra note 287, at 11.
489
Merry, “Constructing a Global Law”, supra note 12, at 974.
73
study culture as a process shaped by factors such as the interplay between individual agency
and social structure.490
When focusing on multiple configurations and meanings representing “a network of
perspectives”, that emerge from a ‘situated analyses of rights’ as proposed in the actor-
oriented perspective on human rights,491 it is possible to avoid the age old dichotomies
between “human rights universals and cultural absolutes”. For example, non-discrimination of
children in an African context is not the perspective of human rights advocates alone but also
that of “ordinary people who claim no special knowledge of children’s rights.”492 It appears
that the most fruitful approach to the culture and universal human rights debate is viewing
‘rights as culture’493 instead of ‘rights versus culture’ or ‘rights to culture’.
Kaime draws the conclusion that human rights should be given a general enough meaning in
order to address the multiple configurations of meanings and perspectives that are and inform
individuals’ rights and which emerge from the contexts in which people live.494 Human rights
should be interpreted and transformed into practice in a way that raises legitimacy and gives
rise to pluralism that is neither universalist nor relativist but grounded in the reality of
people’s daily lives.495 Merry highlights the need to develop a framework that recognises
difference and specificity but at the same time enables a shared language of equity and
justice.496 Finding this kind of shared language is difficult as long as human rights discourse is
seen as the exclusive terrain of specialised (legal) experts.
2.2.9 Individual rights and collective rights
Another important debate in the search for and exploration of a meaningful human rights
concept that is relevant in a local context concerns individual rights and collective rights.
There has been cultural relativist critique claiming that human rights discourse downplays the
importance of the community and promotes an individualistic model of rights that does not fit
into non-Western way of life.497 The basis of the so called ‘Asian critique’ of human rights
has been that the human rights thinking inscribed in the UDHR and various UN covenants has
a strong focus on the human as an individual, rather than on humanity as a whole. Critics from
Asia argue that because of their individual bias, human rights are a colonialist attempt by
West to impose its view of humanity on others.498 (Ironically, the elites in e.g. Indonesia and
Singapore, two states that have been vocal in defence of ‘Asian values’, are highly
westernised. It seems that the rhetoric of cultural relativism in this case is more about political
opportunism than concern for cultural values.)499
It is true that in conventional human rights thinking there is a strong focus on the individual as
holders of rights. Individual rights are not to be found only in the field of civil and political
rights, but most ESC rights are addressed to individuals, and even ‘third generation’ rights
490
Allaine Cerwonka, “Nervous Conditions”, supra note 167, at 12.
491
Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447, at 39.
492
Thoko Kaime, “The Struggle for Context in the Protection of Children’s Rights: Understanding the Core
Concepts of the African Children’s Charter”, 58 The Journal of Legal Pluralism and Unofficial Law (2009) 33-
68, at 34 and 43.
493
This concept is used in Cowan, Dembour & Wilson (eds), Culture and Rights: Anthropological Perspectives
(Cambridge: Cambridge University Press, 2001).
494
See Kaime, “The Struggle for Context”, supra note 492, at 33.
495
Ibid., at 66.
496
Merry, Human Rights and Gender Violence, supra note 287, at 231.
497
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 44.
498
See Ife, Human Rights from Below, supra note 8, 93.
499
Cowan, Dembour and Wilson, “Introduction”, supra note 13, at 7.
74
such as the right to development contains an individual dimension.500 Human rights are
private in that they are claimed to adhere in the human person him- or herself (the argument
being that everyone has human rights by virtue of being human), unmediated by social
relations. They are consequently also individual: an isolated human being can in principle
exercise them. A human being holds rights not only against the state, but also against
‘society’, i.e., against his or her community or even family.501 (We can find examples of such
cases in Merry’s book on violence against women.)502 This is a radical departure from what
has been the norm in most human societies, in which collective and communal rights would
be preferred to individual rights.503
In different societies there are different ways of placing emphasis on individual rights/duties
and collective rights/duties. A liberal, conventional understanding of rights implies both
individual rights and individual responsibilities; a more social democratic tradition would
underline individual rights and collective responsibilities; in Asia, by contrast, the lines
between the individual, the society and the state are blurred by conceptions of duty, putting
emphasis on individual duties to contribute well-being of the collective; and finally a
communist ideal would subordinate the individual to the collective in terms of both duties and
rights.504 Human rights as defined in most international legal agreements reflect a certain way
of putting emphasis on individual rights and responsibilities in relation to collective rights and
responsibilities, although the normative preferences of many of the human rights instruments
that have been adopted since the Southern states gained more influence over the standard
setting process indicates that this is certainly not black-and-white. Many of the latter
instruments move away from a focus on individualism and aim at tackling issues affecting
groups or systemic social and economic problems that require radical solutions.505
Because of the Asian critique and as a response to advocacy on those parts of groups that are
often systematically denied human rights (e.g. women, indigenous peoples, people with
disabilities, and children) there has, in recent decades, been a growing interest in
understanding human rights collectively as well as individually.506 As we know there are some
human rights documents that contain human rights whose holders are groups as well as
individuals. The UN Declaration on the Rights of Indigenous Peoples507 is an example of a
document that incorporates rights regarded as belonging individually to members of
indigenous communities as well as rights regarded as collective, such as the right to live
freely as distinct peoples. The African Charter on Human and People’s Rights, adopted in
500
Martin Scheinin, “Characteristics of Human Rights Norms”, in C. Krause & M. Scheinin (eds), International
Protection of human Rights: A textbook (Turku/Åbo: Åbo Akademi University, Institute for Human Rights,
2009) 19-37, at 24.
501
Rhoda E. Howard, “Dignity, Community, and Human Rights”, in Abdullahi Ahmed An-Na’im (ed.), Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press,
1992) 81-102, at 82-83.
502
Merry, Human Rights and Gender Violence, supra note 287.
503
Howard, “Dignity, Community, and Human Rights”, supra note 501, at 83.
504
Ife, Human Rights from Below, supra note 8, at 94; Mutua, “Standard Setting in Human Rights”, supra note
296, at 576.
505
Mutua, “Standard Setting in Human Rights”, supra note 296, at 577. Examples would be the Declaration on
the Right to Development (1986), Declaration on the Rights of Indigenous Peoples (2006), and Convention on
the Rights of Persons with Disabilities (2006).
506
Ife, Human Rights from Below, supra note 8, at 93.
507
Adopted by the Human Rights Council on 29 June 2006 after more than twenty years of formal debates. See
Robin Perry, “Balancing Rights or Building Rights? Reconciling the Right to Use Customary Systems of Law
with Competing Human Rights in Pursuit of Indigenous Sovereignty” 24 Harvard Human Rights Journal (2011)
71-114.
75
1981, includes people’s rights to existence and self-determination,508 to economic, social and
cultural development,509 and to a general satisfactory environment.510 Moreover, the
International Covenant on Civil and Political Rights511 contains a true collective right, the
right of self-determination in Article 1.512
Developments of human rights law call into question rigid distinctions between individual and
community in thinking about human rights and rights claims. As with universalism and
context, it is essential to stop thinking about individual or collective rights, but instead
emphasise that all human rights can have both individual and collective aspects.513 Some
claims are collective in nature, such as indigenous communities’ claims for compensation for
use of their knowledge in medicine. A ‘situated analyses of rights’ as proposed in the actor-
oriented perspective on human rights, point to people’s own experiences of how individual
and community concerns and interest overlap, sometimes in harmony and sometimes in
tension. Sometimes it makes no sense to talk of individual rights unless the broader issue of
the group’s status as a rights-holding community is also addressed. This might be the case
with individuals belonging to a low caste: your status as a member of a particular group is
very central to how you are defined and treated in a particular social context.514 The challenge
is to not disregard the community context in which people are living, but at the same time not
legitimising a narrow definition of personhood based on status in hierarchical social
relationships.515
2.2.10 Indivisible and hierarchical human rights
A final debate that Nyamu-Musembi refers to when presenting the actor-oriented perspective
on human rights is that which revolves around the relationship between different sets of
rights. The issue that has been debated can in simplified terms be put like this: is the
relationship a hierarchical one so that there are certain rights that take precedence over other
rights? Or are all human rights indivisible and interdependent and interrelated,516 as made
clear in the Vienna Declaration and Programme for Action?517 This would imply that human
rights are non-hierarchical.
Internationally recognised human rights have traditionally been, especially before the Vienna
Conference on Human Rights in 1993, divided into different categories. A well-known
distinction that is often used is between three ‘generations’ of human rights: 1) civil and
political; 2) economic, social and cultural rights; and 3) ‘new’ or ‘third-generation’ human
rights, such as the right to peace, the right to development and environmental rights. This
concept of generations may be used to suggest an order of priority between human rights.518
Civil and political rights have been accorded stronger recognition in most legal frameworks
and are often treated as if they take precedence over economic, social, and cultural rights.519
In addition, the dominance of human rights discourse by the law and the legal profession has
508
Art. 20.
509
Art. 22.
510
Art. 24.
511
Adopted in 1966, entered into force in 1976.
512
These examples are raised in Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447.
513
Ife, Human Rights from Below, supra note 8, at103.
514
Nyamu-Musembi, “Towards an Actor-Oriented Perspective”, supra note 447, at 38-39.
515
Ibid., at 41.
516
Ibid., at 41.
517
Adopted at World Conference on Human Rights in Vienna, 1993, UN doc. A/CONF.157/23, para. 5.
518
Scheinin, “Characteristics of Human Rights Norms”, supra note 500, at 22.
519
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 41.
76
had consequences for the way in which human rights have been understood. Privileging civil
and political rights over other human rights, as these tend to be more readily justiciable and
thereby more easily dealt with through legal structures and processes, is one such
consequence.520 This is changing now that there are increasingly more efforts to deal with
ESC rights as justiciable rights.521
In the UN rhetoric today, and in the rhetoric of most NGOs, it is, however, almost taken as a
given that human rights are interdependent, interrelated, and indivisible (although it remains
more of a statement of intent than a reality).522 Indivisibility is also the starting point for
human rights-based approaches to development: civil and political rights mean little without
other categories of rights, and vice-versa. It is clear that in lived reality people do not
experience rights, or their deprivations, in a way that would make it possible to distinguish
between different sets of rights.523 Concrete examples of how this functions in reality are
raised in literature from within the development discourse.524
The interrelated nature of human rights seems to suggest that all human rights share common
characteristics, for example that they imply obligations on the part of duty-bearers.525 The
idea that there would be a clear difference between the three ‘generations’ or categories of
human rights, or even between the two first ones, is misconceived. While it is possible to
make a distinction between negative and positive obligations, this distinction does not follow
the three categories. Civil and political rights often require positive measures, including
measures that require resources, e.g. holding of elections.526 All human rights require
resources in order for realisation to take place. Moreover, it is possible to understand all rights
from the first two generations as having both individual and collective aspects, and also the
third generation contains rights that have individual dimensions.
Daniel Whelan has reviewed the ‘indivisibility and interdependence’ literature from the 1980s
and 1990s and writes that “the language of interrelatedness demonstrates equality of
importance or legitimacy of economic, social, and cultural rights in relation to civil and
political rights.”527 The rhetoric of indivisibility carries both conceptual and symbolic weight,
and the claim that the two categories of human rights are indivisible carries considerable
meaning. This rhetoric first emerged during the late 1940s and early 1950s, when the UN was
the scene for serious debates about how to codify the rights in the UDHR into binding
international law.528 Moyn points out that in the 1940s when the idea of human rights was
forged, there was some commitment to social equality, and social rights were comparatively
uncontroversial. However, the context for the breakthrough of the human rights movement in
the 1970s, that of totalitarianism and authoritarian rule, meant that social rights were not an
issue that featured on the agenda.529
As we know, the Universal Declaration makes no distinction between civil and political rights
and economic, social, and cultural rights. However, it was the intention of the UN
520
Ife, Human Rights from Below, supra note 8, 111.
521
See Sisay Alemahu Yeshanew, The Justiciability of Economic, Social and Cultural Rights in the African
Regional Human Rights System (Åbo: Åbo Akademi University Press, 2011).
522
See Gready and Ensor, “Introduction”, supra note 70, at 14.
523
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 42.
524
Gready and Ensor, “Introduction”, supra note 70, at 14.
525
Daniel J. Whelan, Indivisible Human Rights: A History (Philadelphia: University of Pennsylvania Press,
2010) at 4.
526
Scheinin, “Characteristics of Human Rights Norms”, supra note 500, at 24.
527
Whelan, Indivisible Human Rights, supra note 525, at 5. Emphasis in original.
528
Whelan, Indivisible Human Rights, supra note 525, at 6.
529
Moyn, The Last Utopia, supra note 38, at 222.
77
Commission on Human Rights to include only the first set of rights in a binding covenant.
The plan on behalf of the Commission was to later on draft further conventions and additional
instruments to cover other categories of rights. However, the General Assembly requested the
covenant to include ESC rights. The Commission made a redraft in 1951 but the following
year, after heated debate, the GA requested the Commission to draft two separate human
rights covenants, separating again the two categories of rights. The countries that lobbied for a
single legally binding covenant were concerned that ESC rights would never be embodied in a
binding treaty if this was postponed. They also wanted the West to give as much attention to
ESC right as to civil rights, a debate that also raised the issue of a guarantee for international
development resources. Other postcolonial states, such as India, on the other hand, recognised
that ESC rights would be primarily national responsibility – not a responsibility for the
international community – individual rights as they are.530
The GA decision of 1952 to divide the then-single Covenant into two separate treaties is often
referred to in literature on human rights. In the more recent literature, the focus for the reasons
behind this change of events is placed on Cold War politics and the ideological differences
between the United States and the Soviet Union. Mostly, these accounts overlook another
critical political factor that led to the division: the importance of ESC rights to emerging anti-
colonial and development agendas of newly independent states of the South. Among these
states there was also strong support for self-determination as a human right,531 an issue that is
highly relevant for the debate on the collective/individual nature of human rights. The debates
on the right to development sprung out of this rhetoric. Most industrialised states of the West
were opposed to the fact that the Declaration on the Right to Development framed some of the
rights as belonging to states instead of individuals.532 All of this is crucial for our
understanding of the role of human rights in development policy and practice. It seems that
the recipient states of development assistance and the donor states throughout history have
had quite a different emphasis in the discourse on human rights, and this has implications for
the counter-hegemonic potential of human rights. If developing states and their citizens feel
alien to the contemporary dominant human rights discourse, it is questionable that human
rights provide tools for them to address injustices and development problems, unless they
participate in reformulating the human rights concept.
The contemporary language of indivisibility reflects an acknowledgement of the fundamental
unity of human rights as enumerated in the UDHR. Indivisibility is seen as a remedy for the
breech caused by the forced separation that took place due to political disagreements,
stemming inter alia from hesitation to the idea of justiciable economic and social rights.533
Recent emphasis on human rights-based approaches to development suggests attempts to
bridge the gap between freedom and sustenance. Moreover, viewing of participation as a right
has politicised economic and social rights; the fulfilment of these rights are no longer seen as
a ‘welfarist’ concern with provision of services to passive ‘beneficiaries’.534 The position that
there is no ‘hierarchy’ of rights can, however, appear unhelpful for those seeking to identify
priorities for action and change, e.g. in human rights-based development work. Therefore, it is
important to understand how rights regimes operate as they relate to the capacity of poor
people to access opportunities in order to identify and prioritise strategic entry points for
action.535
530
Whelan, Indivisible Human Rights, supra note 525, at 6-7.
531
Ibid., at 62.
532
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 42.
533
Whelan, Indivisible Human Rights, supra note 525, at 208.
534
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 43-44.
535
Moser and Norton, To Claim Our Rights, supra note 46, at 14.
78
In an actor-oriented perspective on rights, there would be an open question about how people
articulate rights claims in specific situations, instead of asking which types of rights are
important and how they reinforce or weaken each other. An open question that does not
assume anything about a hierarchy of rights “is more likely to bring the complex overlap
between demands for rights as ‘things’ and demands for the power to make decisions
concerning the ‘things’ (participation).”536
Another important issue is that the two traditional categories of rights, civil, political and
economic, and social and cultural, are not enough to cover rights claims in a rapidly changing
world. Demands from rights-holders reject the compartmentalisation of rights and continue to
expand the rubric of rights into new areas such as knowledge rights. An actor-oriented
perspective seeks to investigate struggles over rights in the everyday experiences as mediated
by factors such as gender, ethnicity, caste and kinship structures,537 while being open to issues
and demands that do not easily fit into the current legal human rights structure.
Being aware of the tensions and shortcomings of the legal human rights structure is important
in order to be able to use that framework when formulating human rights claims. An actor-
oriented perspective allows for creative use of the human rights framework, not being too
limited in instances where the human rights framework clearly contradicts lived reality. The
artificial division of human rights is an obvious example.
2.2.11 Concluding remarks
In constructivist research there is an in-built assumption that people have agency and are
therefore capable of transformative actions that delegitimise, destroy, and rebuild structures.
Dominant definitions of human rights are not immune to such delegitimisation and
reconstruction. There is no opposition between an actor perspective and a structural
perspective of human rights. Structure puts limits on actions and agency but actions do change
structure.
For many, human rights remain an excluding and elitist discourse with little relevance to the
everyday lived reality. Yet, human rights represent a powerful idea. Human rights discourse
needs to be expanded and made available so that a public political dialogue can take place at
all levels of society rather than being protected and kept as expert knowledge. Human rights-
based approaches to development can at best help in advancing this kind of localisation and
politicisation process of human rights.
In this chapter I have argued for an inclusive and open way of approaching and understanding
the human rights concept. Human rights are legal and political; universal and
particular/contextual; have both individual and collective dimensions and include claims that
can be situated in different categories of rights. Human rights discourse is a discourse of unity
(putting emphasis on our shared humanity), however, this discourse should not replace a
discourse of division but rather be placed alongside it, another example of both/and instead of
either/or thinking. We need to understand what unites human beings as well as what divides
them in order to build an adequate basis for social and political practice.538
Human rights discourse is a complex and contradictory discourse, especially in its legal
forms. Legal human rights claims can both serve to maintain the status quo and to challenge
and change it. Law as a discourse tends to have a “distinct ability to define and pronounce
536
Nyamu-Musembi, “Towards an Actor-Oriented Perspective” supra note 447, at 46.
537
Ibid., at 45-46.
538
Ife, Human Rights and Social Work, supra note 3, at 201.
79
authoritatively on the world around it”, as noted by Kapur.539 The actor-oriented and from
below perspectives on human rights are aware of this one-size-fits-all-best practice tendency
that stifles from below visions. Political human rights claims are of course not free from
contradictions and tensions either. When introduced from above, as expert knowledge, human
rights are often introduced as somehow politically neutral legal solutions that will improve
‘governance’.
Central to the argument in Ife’s idea about human rights from below as well as in Nyamu-
Musembi’s actor-oriented perspective on human rights in development practice is the
importance of the actors themselves being able to contribute to giving meaning to human
rights. It is the process of ‘meaning-giving’ that is interesting in a human rights-based
approach to development (and this does not, of course, take in a vacuum, the structures of the
international human rights system are there to influence that process). If the actors are going
to have a sense of ownership, so that a ‘culture of human rights’ can be embedded, they must
have a say in the process. If participation is going to be meaningful, human rights cannot be
seen as a ‘professional’ (mostly legal) practice. The human rights concept must be understood
in a way that is organic to the specific realities of the actors claiming them. Additionally, the
strategies applied must be born out of an understanding of the relationships and identities that
shape this reality. In this way human rights can be relevant and meaningful to the lived
realities of people striving to improve the conditions of their lives. If we take the idea about
agency seriously, we must let actors themselves speak about human rights – we cannot have a
ready list of ‘things’ ‘they’ ought to desire. There must be trust in the wisdom and change
from below, seeing that there are opportunities and challenges for change in all cultures and
all situations. The task of people doing human rights-based development work is about
assisting the process so that poor people’s claims are being heard, seen and reflected.540 One
of the most fundamental dilemmas in professional assisting is that outsiders try to impose
their idea of ‘help’, or ‘change’. Too often top-down management hide behind nice slogans of
participation and empowerment, and often conflicts between these two principles are hidden
and ignored. It remains an unresolved question how to deal with situations in which
participants do not prioritise human rights realisation.
An actor-oriented approach does not imply that the UDHR, UN covenants of human rights
and national bills of rights have no value or are unimportant or that human rights
professionals’ skills have no value. These documents have legal significance and they have
symbolic power and can be tools to be used in advocacy, an important element of human
rights-based practice. However, they are not the final and last word on human rights. Even
though they enjoy some degree of universality, all the documents were made at particular
times and specific contexts. People should be able to look at them critically and think about
what human rights mean for them. Social movements have during all times challenged the
human rights system and contributed to its evolution and reformulation. However, as there is
a danger that actors ‘defining rights’ will make a list of local ‘demands’ explained in a rights
language, it is essential that there is the aspiration of universality involved in such an exercise.
People must think beyond narrow self-interest so that the human rights claims they have for
themselves are also what they wish could be applied to all of humanity.541 This is what
distinguishes human rights from other rights regimes.
539
Kapur, “Revisioning the Role of Law”, supra note 382, at 104. Kapur is referring to Carol Smart.
540
Moser and Norton, To Claim Our Rights, supra note 46.
541
Ife, Human Rights from Below, supra note 8, at 212-213.
80
2.3 Food rights, food security, and livelihoods
Having analysed the concepts ‘development’ and ‘human rights’ it is now time to turn to food
rights, food security and livelihoods. In this chapter, I will deal with the integration between
the right to adequate food and food security. In order to understand the context I will start by
exploring who the poor and hungry are. Then I will firstly review the integration and
disintegration between the right to food and food security historically, and secondly explore
the relationship between the two concepts, including how they have come together as a human
rights-based approach to food security. I will also review how the right to food has been given
content and meaning by expert institutions and how civil society actors strive to change and
redefine that content so that it would resonate with the lived reality of the poor and hungry.
2.3.1 Who are the poor and hungry?
Who is poor: A word on measuring poverty
Just as there are no universally accepted ways of defining development, there are no value-
neutral means of measuring development or the lack of it. Since the understanding of
development has been dominated by economic aspects, it has become common for countries
to establish a poverty line based on income or consumption. The World Bank has set up the
equivalent of US $1 in consumption per person per day as the line of absolute poverty, for
purposes of international comparison.542 According to this way of measuring, a poor person is
someone who has less than one dollar per day to live on. Despite obvious shortcoming, the
one dollar a day has been widely used as a proxy for poverty. For instance, the UN
Millennium Declaration set out the goal that the proportion of the world’s people whose
income is less than one dollar a day should be halved by the year 2015.543
The human development index (HDI) is a measurement of socio-economic progress that
reflects a broader understanding of development. The index uses a combination of criteria to
measure the quality of people’s lives. Three variables have been chosen: life expectancy,
educational attainment (adult literacy and combined primary, secondary and tertiary
enrolment), and real gross domestic product (GDP) per capita.544
The 1997 edition of the Human Development Report also introduced a human poverty index
(HPI), using variables such as the percentage of people expected to die before the age of forty,
the percentage of adults who are illiterate, the percentage who are lacking access to health
services and safe water.545
The latest invention is called the multidimensional poverty index (MPI) and is said to reveal a
different pattern of poverty than income poverty, as it reflects a different set of deprivations.
The MPI has three dimensions: health, education, and standard of living. These are measured
using ten indicators, inter alia child mortality, nutrition, years of schooling, child enrolment,
drinking water, sanitation, and assets.546 What is special about the MPI (compared to progress
reports on the Millennium Development Goals, for instance) is that the MPI establishes the
542
Jan Knippers Black, Development in Theory and Practice: Paradigms and Paradoxes (USA: Westview Press,
second edition 1999) 40-41. Today it is $1.25.
543
UN General Assembly Resolution 55/2, 18 September 2000, Art. 19.
544
Black, Development in Theory and Practice, supra note 542, at 42.
545
Ibid., 42.
546
Sabine Alkire and Maria Emma Santos, “Acute Multidimensional Poverty: A New Index for Developing
Countries”, UNDP Human Development Research Paper 2010/11, at 4. Available at http://hdr.undp.org/
en/reports/global/hdr2010/papers/HDRP_2010_11.pdf, visited 10 May 2012.
81
‘base’ population as being the household. The argument is that as people live in households,
the suffering of one member affects other members, and the abilities of one member to help
other household members. The MPI analysis therefore focuses on people rather than nations.
The MPI calculate the number of people whose lives are affected by multiple deprivations,
not the number of countries as is the case in the Global Monitoring Reports. This commitment
is argued to be part of a human rights-based approach and other ethical approaches, in which
every human life is to be given equal weight.547 People are in the centre, not economies.
However, one might note that focussing on households rather than individuals is alien to
conventional, individualistic human rights practice.
Who are the hungry?
The FAO calculates the number of hungry and undernourished people worldwide and
publishes the results annually in The State of Food Insecurity in the World reports. The latest
report tells us that, for the first time since 1970, more than one billion people and around one-
sixth of all of humanity are hungry. The FAO claims that even before the food and economic
crises, the number of undernourished people in the world had been increasing slowly and
steadily for a decade.548
Numbers are numbers and they might be useful to give us a hint about how prevalent poverty
and hunger are on a global scale. However, they do not tell us much about the question who
the poor and hungry people are. The UN Millennium Development Project Taskforce on
Hunger writes in the report Halving Hunger: It can be done that the hungry and the poor are
the vulnerable. Many of the households living below the poverty line are unable to obtain
enough food to feed the family members. Women and children are especially vulnerable to
hunger. Women produce 60-80 percent of the food in most developing countries and more
than 80 percent of the food in Africa – and yet they are disproportionately vulnerable to
hunger, due to existing social inequalities. They own only 1 percent of the land and receive
only 7 percent of agricultural extension time and resources.549 In addition, when a women
receives inadequate nutrition this has a tremendous effects on her children. Women may not
be able to produce breast milk of sufficient quantity and quality when they are
malnourished.550
Poor and hungry people do not live only in so called developing countries but also in rich
industrialised nations. Janet Poppendieck has studied emergency food and their users in the
USA. From her book Sweet charity? we learn that also in the wealthy USA the individuals
most at risk of hunger are women, children, and the elderly, many of them members of
minority groups. These groups asserted that the reasons they are hungry is because of
unemployment or underemployment, high costs of housing and other basic needs, and
inadequate welfare and food assistance benefits.551
Studies show that the majority of the world’s hungry people live in rural areas. The task force
on hunger estimate that about half of the hungry are smallholder farming households, as they
547
Alkire and Santos, “Acute Multidimensional Poverty”, supra note 546, at 5-6.
548
FAO, The State of Food Insecurity in the World 2009 (Rome: Food and Agriculture Organization of the
United Nations, 2009) at 4 and 8.
549
UN Millennium Development Project, Halving Hunger: It can be done (Taskforce on Hunger report, 2005),
at 5. Available at http://www.unmillenniumproject.org/documents/Hunger-lowres-complete.pdf, visited 4
December 2011.
550
Ibid, at 2.
551
Janet Poppendieck, Sweet Charity? Emergency Food and the End of Entitlement (USA: Penguin Books,
1998) at 50.
82
are unable to either grow or buy enough food to meet their daily needs. While accurate data is
difficult to find, the taskforce estimates that roughly two-tenths of the hungry are landless
rural people; one-tenth are pastoralists, fisher folk, and people who depend on forests for their
livelihoods; and two-tenths live in urban areas.552 Olivier De Schutter points out that in
Africa, 90 percent of agricultural production is from smallholder famers with less than two
hectares. They cultivate plots that are so small and of poor quality that they need to buy
food.553 Employment opportunities to obtain cash are, however, rare in poor rural areas.554
Modern development schemes have promoted a movement to input-intensive, monocultural
production for export, and small farmers often face fluctuating prices, increased costs, and
decreased government support,555 as we will see in the Malawi case-study in part II.
Most of the world’s hungry, or 90 percent, are chronically undernourished. Only a small part
of the hungry, or 10 percent, are those suffering from acute hunger that typically takes place
during famines and disasters. Then as a third category there are those suffering from hidden
hunger, caused by lack of essential micronutrients, even when they consume adequate
amounts of calories and protein. Victims of acute hunger usually attract more attention and
support than the chronic and hidden hunger.556 This study addresses efforts that try to support
those suffering from acute hunger through food assistance interventions as well and efforts
that try to address chronic and hidden hunger through improved services e.g. in the area of
agriculture.
2.3.2 The poor as experts on their own development
What is striking when reviewing the meaning behind the concept ‘development’ and ‘poverty’
is the absence of the voices of the poor themselves in defining development or the lack of it.
Traditionally, it has been those who regard themselves as the ‘social superiors’ to the poor
that have defined poverty and the poor. The nineteenth century called them the dangerous
classes, and these negative perceptions have not completely disappeared. The poor are often
viewed as equal to dirty, dumb, drugged, prone to violence and crime, and generally
irresponsible. Social reformers have protested against this kind of stigmatisation. They have
argued that the poor are themselves not to blame for their condition: the dangerous turned into
the unfortunate, or disadvantaged classes. Poor people should at least have a roof over their
head, clothes on their bodies, food on the table, and a job to go to. Moreover, in modern
times, the state has become the guardian of the poor, running welfare programmes with
specialised social workers in charge.557 This is the thinking also in human rights discourse.
In the Consultations with the Poor study, that set out to listen to and understand the voices of
approximately 20,000 people from 23 countries, the poor are seen as the experts on poverty.
The large majority of the poor people included in the Consultations said they are worse off
now, have fewer economic opportunities, and live in greater insecurity than in the past. They
do not feel that they have benefited from massive political and economic changes and
restructuring around the world. From a human rights perspective it is worrisome that poor
people’s experiences with government institutions are largely negative, even when
government programmes are rated as important. The poor find their own institutions to be the
552
Halving Hunger: It can be done, supra note 549, at 3-4.
553
Olivier De Schutter, “The Emerging Human Right to Land”, 12 International Community Law Review (2010)
303-334, at 304.
554
Halving Hunger: It can be done, supra note 549, at 4.
555
De Schutter, “The Emerging Human Right to Land”, supra note 553, at 304.
556
Halving Hunger: It can be done, supra note 549, at 2.
557
Friedman, Empowerment: The Politics of Alternative Development, supra note 263, at 55-56.
83
most dependable.558 One of the significant conclusions was that overwhelmingly the poor
want to be heard, and they want to participate in institutions, whether of government or civil
society. They want institutions to play a major role: they want that institutions do more and do
it well.559
Another issue that became clear was the importance of the psychological dimensions of
wellbeing and ill-being. It became clear that the good and the bad in life are multidimensional,
with the experiential and psychological dimensions at the centre.560 The experiences are
affected by a combination of material, physical, and social factors.561
What also emerged from the collective voices of the poor is their resilience and hard work.
Despite the stress of their children going hungry, the humiliation and shame experienced in
their interaction with government, traders, money lenders and landlords, the poor survive and
persist. Additionally the poor take initiatives. They create groups to patrol the community to
protect against theft; they establish saving groups; they create unions, cooperatives, temples,
mosques, and church associations. They have labour exchange groups, chicken raising groups
and burial groups.562 This shows that the poor have agency and find ways of coping with the
reality of their daily lives. We assume that because the majority of hungry farmers have not
managed to take back power from corporate interests, landlords or bureaucrats, nobody can.
Seldom do we seek to learn from the examples of peasant societies that have in fact overcome
hunger.563
This is contrary to our view of poor people as passive and incapable of assuming
responsibility for their own lives, and thereby needing to be cared for.564 Researchers often
operate with implicit or explicit assumptions that poor and oppressed people are ‘marginals’
or living ‘outside’ society. Paulo Freire claims they have always been ‘inside’ – inside the
structures which made them who they are. The solution is not to ‘integrate’ into the same
structures that oppress them but to transform these structures.565 The question is if strategies
based on human rights and the right to food can contribute to such social transformation.
2.3.3 Integration of food security and the right to food
From national food security to household food security
The concept of ‘food security’ became increasingly into focus in the 1970s as a response to
the world food crisis taking place early in the decade. In 1974, the FAO organised the World
Food Conference, which inter alia recommended the establishment of a Committee on World
Food Security under the FAO.566 The early 1970s saw the start of a new policy-oriented food
and nutrition debate. This was clearly due to the fact that: firstly, increased food production
did not guarantee a reduction in hunger; secondly, that many technological solutions proposed
558
Deepa Narayan et al. “Global Synthesis: Consultations with the Poor”, Poverty Group of the World Bank,
1999, at. 2. Available at http://siteresources.worldbank.org/INTPOVERTY/Resources/335642-1124115102975/
15551991124138742310/synthes.pdf, visited 3 March 2012.
559
Ibid., at 39.
560
Ibid., at 3-4.
561
Ibid., at 13.
562
Ibid., at 38-39.
563
Frances Moore Lappé and Joseph Collins, Food First: Beyond the Myth of Scarcity (USA: Institute for Food
and Development Policy, 1977) at 392.
564
Poppendieck, Sweet Charity?, supra note 551, at 318.
565
Freire, Pedagogy of the Oppressed, supra 364, at 55.
566
Ida-Eline Engh, Developing Capacity to Realise Socio-Economic Rights: The Right to Food in the Context of
HIV/AIDS in South Africa and Uganda (Antwerp: Intersentia, 2008) at 59.
84
had been based on insufficient analysis; and thirdly that a greater role and responsibility for
the state was essential for the prevention of hunger and long term food security. Then in 1976
the Covenant on Economic, Social and Cultural Rights, which had been adopted a decade
earlier, came into force. Some human rights experts and a few interested governments started
to elaborate on the notion of the relationship of human rights with economic and social
development.567
In the 1980s, there was increased focus on household food security as opposed to national
food security defined in terms of national grain reserves for stable grains at national levels.
Researchers tried to establish a concept taking into account the economics of the household,
its social and ecological environment as well as the prevailing food culture as the broad
framework to be used when determining food security conditions of households. Some of
these elements were to become the basis also for the normative understanding of the right to
adequate food. Today food security is generally examined at the household level in terms of
access to food, rather than in terms of food supply.568 However, Engh draws the conclusion
that focus on access to food is still lacking in parts of the food security debates and policy
discussions, so that there sometimes is a tendency to focus on availability of food at global,
national or regional levels rather than vulnerable individuals’ and groups’ access to food. For
the right to food, the starting point is always physical and economic access to food.569
The right to food as a concept has not been completely absent in debates on food security
concerns. In 1981 human rights experts and food/nutrition developmentalists came together at
a United Nations University seminar to think about how to bridge the gap between food and
nutrition concerns, as well as goals and the system of human rights norms. As a result of this
and other similar meetings development professionals working with food and nutrition
gradually started using a new terminology that was inspired by human rights thinking: the
hungry would no longer be seen as passive recipients of charity – they would become rights-
holders. As rights-holders they can in principle claim their right to food to be fulfilled, while
the state, as a signatory to the Covenant on Economic, Social and Cultural Rights, becomes
the corresponding duty-bearer with obligations to help fulfil the right to food along with other
rights.570 This implies that the idea to divide people and institutions (mainly state authorities)
into rights-holders and duty-bearers, when e.g. planning food security interventions, was
already shaped in the 1980s. (The gap between theory and practice is however big and the
actors involved in food related development interventions diverse. The language of rights and
duties is still largely absent in the policies of the World Food Programme, for instance.)
Moreover, a review of a textbook type of literature on human rights law reveals that the word
‘beneficiary’ is still applied also in human rights discourse,571 and it is only more recently that
the term right-holder is used by legal experts.572 This is one example of the mutual changes
and effects coming out of the process when two discourses meet.
567
Wenche Barth Eide, “The Promotion of a Human Rights Perspective on Food Security: Highlights of an
Evolving Process”, in Clay & Stokke (eds), Food Aid and Human Security (London: EADI, 2000) 326-350, at
330-331.
568
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 60-62. This is inspired by
the thinking of Amartya Sen.
569
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 74.
570
Eide, “The Promotion of a Human Rights Perspective on Food Security”, supra note 567, at 332.
571
See e.g. A. Eide, C. Krause & A Rosas (eds), Economic, Social and Cultural Rights: A Textbook (Dordrecht:
Martinus Nijhoff Publishers, Second Revised Edition, 2001); Scheinin, “Characteristics of Human Rights
Norms”, supra note 500, at 35.
572
See e.g. Declaration of Principles of Equality, The Equal Rights Trust, 2008. Available at
http://www.equalrightstrust.org/about-ert/index.htm, visited 14 May 2012.
85
We should keep in mind that the meaning of the right to food was far from clear during this
time. To many the idea of food as a right was unfamiliar and yet others had misconstrued the
notion of a right to food as the unconditional duty of the state to provide food to all
irrespective of its limited resources. There were various attempts to promote the right to food
as a human right at intergovernmental conferences in the early 1990’s. Although the World
Conference on Human Rights in 1993 contributed to a conducive environment, it was only
UNICEF among the UN agencies that by the mid 1990s had shown interest or a capacity to go
beyond rhetorical statements about food as a human right. It was also UNICEF that chaired
the Working Group on Nutrition, Ethics and Human Rights, that met for the first time in 1994,
functioning under the UN system. Reports and recommendations of the Working Group made
the UN agencies more familiar with the concept of a human rights approach to food and
nutrition policies and programmes. In 1999, there was a session of the ACC/Sub-Committee
for Nutrition in Geneva, hosted by the UN High Commissioner on Human Rights, and
preceded by a thematic symposium, which provided an opportunity for a deeper consideration
of the issues.573
At the first meeting between the human rights and development professionals in 1981 it was
agreed that a more precise definition of the right to food, as well as further operationalisation
of the corresponding duties or obligations for implementing this right was needed.574 It was
around the time of the World Food Summit in Rome in 1996 that the strong interest in food as
a human right became apparent.575 The World Food Summit and the subsequent Plan for
Action included a specific call for a better definition of the right to food and the steps to
realise it.576 Considerable effort has been put into this task. In 1999, the Committee on
Economic, Social and Cultural Rights clarified the normative content of the right to food in
General Comment No. 12.577 The next year the Human Rights Commission appointed a
Special Rapportuer on the Right to Food.578 In the Declaration adopted at the World Food
Summit: five years later in 2002 the FAO Council was called to establish an
Intergovernmental Working Group “to elaborate, in a period of two years, a set of voluntary
guidelines to support Member States' efforts to achieve the progressive realisation of the right
to adequate food in the context of national food security;”579 These so called Right to Food
Guidelines were adopted in 2004.580 The Guidelines can be seen as a first attempt to ‘marry’
food security and the right to food,581 and will be reviewed below.
This short historic overview reveals that the debates around food security and the right to food
have had strong influence on each other. The cooperation between engaged professionals
from both discourses existed, in the margins, long before human rights-based approaches
became a trend. From the margins it was in the 1980s that the ‘food security ship’ and the
573
Eide, “The Promotion of a Human Rights Perspective on Food Security”, supra note 567, at 334-336.
574
Ibid., at 332.
575
Kerstin Mechlem, “The Development of Voluntary Guidelines for the Right to Adequate Food”, in Mahiou
and Snyder (eds), Food Security and Food Safety (Leiden: Martinus Nijhoff Publishers, 2006) 351-390, at 359.
576
Rome Declaration on World Food Security and World Food Summit Plan of Action, Commitment 7,
Objective 4, adopted in Rome 13 November 1996. Available at http://www.fao.org/docrep/003/w3613e/
w3613e00.htm, visited 14 May 2012.
577
General Comment No. 12, (1999) on the right to adequate food, Committee on Economic, Social and Cultural
Rights, Report on the Twentieth session, UN doc. E/C.12/1999/5.
578
Commission on Human Rights Resolution 2000/10 (17 April 2000).
579
FAO, Report of the 123rd Session of the FAO Council, Rome, 28 October – 1 November 2002. Emphasis in
original.
580
Adopted by the 127th Session of the FAO Council, November 2004.
581
See Mechlem, “The Development of Voluntary Guidelines”, supra note 575, at 351-390.
86
‘right to food ship’ started approaching each other and the conceptual ground work for a
human rights-based approach to food was laid.
The relationship between the right to food and food security
Human rights covenants and development policy share the same aim in relation to food, i.e.,
that all people have access to sufficient food. Both are concerned with fulfilling people’s
basic needs for food and nourishment.582 In human rights language this aim is put in the
following manner: “The right to adequate food is realized when every man, woman and child,
alone or in community with others, has physical and economic access at all times to adequate
food or means for its procurement.”583 Almost the same wording is used to define food
security in the World Food Summit Plan of Action,584 a document that was adopted three
years before General Comment No. 12 appeared.
Kerstin Mechlem has covered the relationship between the right to food and food security
quite exhaustively and I will therefore only highlight some basic facts. She firstly points out
that the overall objective of food security policies is achieving food security while right-to-
food aims at realising the right to food.585 The way ‘realization of the right to food’ is defined
by the Committee on Economic, Social and Cultural Rights is almost the same way as food
security is defined. Moreover, food availability, accessibility, safety, cultural acceptability are
issues of concern for both food security and the right to food. The justification of the objective
to realise the right to food/achieve food security is however somewhat different, according to
Mechlem. She states that there are a number of justifications as the ground for the aim of food
security, ranging from moral grounds to more economic approaches. Human rights are, on the
other hand, based on the idea of human dignity, and all other considerations must be
secondary in nature. Mechlem also sees a difference in the nature of the objectives. Food
security is a policy concept, and as such food security is subject to easy redefinition. The right
to food, on the other hand is a well-recognised element of international law, with a binding
normative content, so aiming for realisation of the right to food means implementing a legal
obligation. The right to food can therefore also be violated and such violations can be subject
of judicial or quasi-judicial remedies.586 A rights-based approach to food security views
governments’ commitments in this area as an obligation, not a form of benevolence.587
I partly disagree that the right to food as part of international human rights law would have a
more stable meaning than food security as a policy concept. When the right to food is seen to
be discursively constructed its content and meaning too is subject to changes taking place
over time.
I share Mechlem’s view that the concepts of food security and the right to food relate closely
to each other, although there can be situations when there is food security on the national level
and the right to food of the individual can still be violated, because of discriminatory means.
582
Kerstin Mechlem, “Food Security and the Right to Food in the Discourse of the United Nations”, 10
European Law Journal (2004) 631-648, at 643.
583
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
584
“Food security exists when all people, at all times, have physical and economic access to sufficient, safe and
nutritious food to meet their dietary needs and food preferences for an active and healthy life.” Rome
Declaration on World Food Security and World Food Summit Plan of Action, para 1, adopted in Rome 13
November 1996. Available at http://www.fao.org/docrep/003/w3613e/w3613e00.htm, visited 14 May 2012.
585
Mechlem, “Food Security and the Right to Food”, supra note 582, at 643.
586
Ibid., at 643-644.
587
Food and Agriculture Organization of the United Nations, “The Right to Food in Practice: Implementation at
the National Level”, Rome: FAO, 2006, at 3. Available at http://www.fao.org/righttofood/KC/downloads/vl/
docs/AH189_en.pdf, visited 10 May 2012.
87
This again implies that focus on method is crucial. “Progressively realizing the right to food
should imply using a rights-based approach to food security that has distinct
characteristics.”588 However, what a rights-based approach to food security means is open to
interpretation, as will be shown in the following.
A human rights-based approach to food security as suggested in the Right to Food Guidelines
This section tries to answer the question what are the distinct characteristics of a human
rights-based approach to food security? The answer to this question can be found in a
comparison of the General Comment on the Right to Adequate Food and the Voluntary
Guidelines to support the progressive realisation of the right to adequate food in the context of
national food security (the ‘Right to Food Guidelines’), which are said to be a human rights-
based practical tool.
One could imagine that the specific steps to be taken and the method to be applied are
described in the Right to Food Guidelines to support the progressive realisation of the right to
adequate food in the context of national food security. Furthermore, the Right to Food
Guidelines are said to be “a human rights-based practical tool addressed to all States.” States
are encouraged to apply the Guidelines in developing their strategies, policies, programmes
and activities.589 (The fact that States are the target in the Guidelines does not make them
irrelevant for agencies and organisations as they should support the capacity of the State as
the main duty-bearer, and the capacity of the rights-holders, to realise the right to food.) A
critical note is that the strong focus on national food security leaves the international level
outside the scope of the Guidelines. When focus is on the actions which states can take to
overcome hunger, the Right to Food Guidelines renders the effects of the international
economic system largely invisible, which is a structural factor that can constrain the ability of
states to guarantee food needs of their population.590 This is, however, not the subject of this
particular analysis. I will instead focus on what kind of a human rights-based strategy is
proposed in the Right to Food Guidelines and compare this with the General Comment on the
Right to Adequate Food.
According to General Comment 12, there should be a national strategy to ensure food and
nutrition security for all, based on human rights principles,591 (which are not defined).
National strategies are also dealt with in the Right to Food Guidelines. The General Comment
and Guidelines both point out that before formulating a national strategy, there needs to be
careful assessment of existing national legislation, current programmes, and identification of
constraints and availability of existing resources.592 The strategy should identify policy
measures and activities that are relevant to the situation and context.593
Impact assessment is an essential part of the Guidelines, and states are encouraged to conduct
‘Right to Food Impact Assessments’ in order to identify the impact of domestic policies,
588
Mechlem, “Food Security and the Right to Food”, supra note 582, at 644-645. Engh, Developing Capacity to
Realise Socio-Economic Rights, supra note 566, at 74. Engh says that “the right to food is not synonymous with
food security, but they are closely related. If food security is realized, the conditions will be suitable for the right
to food to be enjoyed.”
589
Voluntary Guidelines, Preface, at 2. Adopted by the 127th Session of the FAO Council
November 2004.
590
Jacqueline Mowbray, “The Right to Food and the International Economic System: An Assessment of the
Rights-Based Approach to the Problem of World Hunger”, 20 Leiden Journal of International Law (2007) 545-
569, at 559.
591
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 21.
592
Voluntary Guidelines, supra note 589, Guideline 3.2.
593
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 22.
88
programmes and projects on the progressive realisation of the right to adequate food.594 With
regard to assessing the food security situation in the country, the Guidelines highlights the
importance of undertaking a “disaggregated analysis on the food insecurity, vulnerability and
nutritional status of different groups in society”.595 Here the Guidelines go further in linking
assessment of food insecurity with the principle of non-discrimination and the key role
disaggregated data plays in an analysis of which groups in society suffer from possible
discrimination in the area of the right to food. Otherwise, the Guidelines more or less repeat
what the General Comment says in terms of that national strategies should address all aspects
of the food system, including the production, processing, distribution, marketing, and
consumption of safe food. The new dimension is that a national strategy for the progressive
realisation of the right to food is linked to poverty reduction strategies, and in this context
States should “give priority to providing basic services to the poorest, and investing in human
resources by ensuring access to primary education for all, basic health care”, etc.596
The Guidelines are clear in pointing out that they do not establish legally binding obligations
for States or international organisations, and that the provisions in the Guidelines do not
modify rights and obligations under international law.597 However, because the claimed added
value of a human rights approach to food security lies in the emphasis of addressing food
insecurity as a matter of obligation, not benevolence, it is important to clarify what exactly is
expected of states under the right to food as formulated in the International Covenant on
Economic, Social and Cultural Rights (ICESCR). According to General Comment 12, the
principal obligation under the right to adequate food is “to take steps to achieve progressively
the full realization of the right to adequate food.”598 Similar to any other human right, this
imposes three levels of obligations on States parties: the obligation to respect, to protect, and
to fulfil.
The obligation to respect existing access to adequate food requires States parties
not to take any measures that result in preventing such access. The obligation to
protect requires measures by the State to ensure that enterprises or individuals do
not deprive individuals of their access to adequate food. The obligation to fulfil
(facilitate) means the State must pro-actively engage in activities intended to
strengthen people's access to and utilization of resources and means to ensure their
livelihood, including food security. Finally, whenever an individual or group is
unable, for reasons beyond their control, to enjoy the right to adequate food by the
means at their disposal, States have the obligation to fulfil (provide) that right
directly. This obligation also applies for persons who are victims of natural or
other disasters.599
This language of respect, protect, and fulfil is not fully integrated into the Right to Food
Guidelines. In the Introduction it is noted that States have an obligation to “respect, promote
and protect and to take appropriate steps to achieve progressively the full realization of the
right to adequate food.”600 When referring to the respect and protect dimension, the
Guidelines repeat the General Comment. In explaining what the promote dimension means,
the Guidelines use the same wording as the Committee on Economic, Social and Cultural
594
Voluntary Guidelines, supra note 589, Guideline 17.2.
595
Voluntary Guidelines, supra note 589, Guideline 13.2.
596
Ibid., Guideline 3.6.
597
Ibid., para. 9.
598
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 14.
599
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15. Emphasis in
original.
600
Voluntary Guidelines, supra note 589, para. 17. Emphasis added.
89
Rights use for the facilitation-dimension. (States are to promote policies intended to
contribute to the progressive realisation of people’s right to adequate food by strengthening
access and utilization of resources and means to ensure a livelihood.) Finally, without using
the word fulfil/provide, the Guidelines explains that states should maintain safety nets or other
assistance for those who are unable to provide for themselves, to the extent resources
permit.601
This is a little confusing as the Guidelines are designed to clarify and help states in
developing strategies, policies, and programmes which are rights-based, i.e. based on legal
obligations. A human rights approach to food security is supposed to facilitate the
implementation of the right to adequate food,602 but the Guidelines are perhaps not
sufficiently clear in defining and giving concrete meaning to this approach. Failing to clarify
the essential fulfil/provide dimension of the tripartite obligations can be confusing to states
that want to establish and maintain safety nets or other assistance for individuals who are
unable to provide for themselves as part of their right to food strategies. The rights-holders
must be able to claim their right from a duty-bearer, otherwise it is unclear what value the
human rights-based approach to food security adds to already existing food security policies.
However the Guidelines seldom link the right to food to an obligation, and does not use
concepts of ‘rights-holders’ and ‘duty-bearers’, concepts that were introduced into the food
security debates already in the 1980s. Instead, the Guidelines are full of rather vague
statements about striving for ‘conducive policies’, through a non-discriminatory and market-
oriented trade system.603 It remains unclear what exactly is the role of duty-bearer institutions,
rights-holders, and different stakeholders such as donor states and international agencies.
The Guidelines are, furthermore, not helpful in clarifying the roles and responsibilities in
times of emergencies. As we have seen in the General Comment, the State has the fulfil-
obligation to provide the right to food directly to victims of natural or other disaster. This duty
is dealt with in Guideline 14, under “Safety nets”. To the extent that resources permit, the
State “should consider” maintaining social safety and food safety nets to protect those who
are unable to provide for themselves. Local procurement of items for food assistance is
encouraged, and the food should be nutritionally adequate and safe, bearing in mind local
circumstances and dietary traditions, and should target those most in need of assistance,
respecting the principle of non-discrimination.604
General Comment 12 encourages similar approaches to food aid under the heading
“international obligations”.605 International food aid is dealt with in Guideline 15, which is
targeting donor states: “Donor States should ensure that their food aid policies support
national efforts by recipient States to achieve food security.” The stages of the food aid
process should, “as far as possible be made in a participatory manner and, whenever possible,
in close collaboration with recipient governments at the national and local level.”606
The Guidelines deal with national safety nets and international food aid as two distinct
domains, and the latter is accepted as being in the hands of donor states, whereas the General
Comment gives the provide-responsibility to the national State, encouraging it to seek
601
Voluntary Guidelines, supra note 589, para. 17.
602
Engh, Developing Capacity to Realise Socio-Economic Rights, supra note 566, at 74.
603
Voluntary Guidelines, supra note 589, Guideline 5, para 4.7.
604
Voluntary Guidelines, supra note 589, Guidelines 14.1, 14.2, 14.5.
605
General Comment No. 12, (1999) on the right to adequate food, supra note 577, paras. 36-41.
606
Voluntary Guidelines, supra note 589, Guidelines 15.1 and 15.5.
90
international assistance when resources are too few to fulfil its minimum obligations.607
Donor policies are dealt with separately under “international obligations” where it is stated
that “States parties should take steps to respect the enjoyment of the right to food in other
countries, to protect that right, to facilitate access to food and to provide the necessary aid
when required.”608
Donor accountability for actions and policies that hamper the right to food in developing
countries is not an issue that is raised in the Right to Food Guidelines. This is an example that
there are many aspects to food security and that the international level cannot be left outside a
comprehensive human rights-based approach to food security. Inadequate food supply is often
a result of complex, structural problems, outside the control of particular states and authorities
on the national level.609 However, the purpose of the above analysis was not to determine how
effective a human rights-based approach is in tackling world hunger but instead to simply
present the ‘distinct characteristics’ of such an approach as it has been laid out in the Right to
Food Guidelines. As we have seen, it is far from clear what these ‘distinct characteristics’
mean and analysing the Guidelines side by side with General Common 12 indicates that
neither document is helpful in giving clear answers.
The Right to Food Guidelines are supposed to be a resource when states want to make their
own national rights-based food security policies at the national level, and therefore it is
natural that it leaves room for a margin of discretion for states to choose their own approaches
and ways of implementing the right to adequate food. Ironically, the Guidelines are quite
detailed in the substantive parts, e.g. in highlighting what states should do to “improve the
functioning of their markets”,610 indicating that there is not much room for discretion in the
area of economic policies – the current market economical system is taken as a given – while
being more vague when it comes to the obligation to respect, protect, and fulfil the right to
food. It is especially the fulfil-dimension that differs from the interpretation given by the
Committee on Economic, Social and Cultural Rights in General Comment 12. These
obligations are mentioned only in the introduction and not in the actual Guidelines, indicating
their marginal position.
In the area of impact assessment and monitoring of the right to food the Right to Food
Guidelines, followed by FAO publications on the same subject, have clarified many issues
that are only mentioned briefly in the General Comment on the Right to Adequate Food. In
other areas it has been less helpful. The ‘key principles’ put forth in the Guidelines are vague
slogans instead of useful guiding principles to inspire the process of development and human
rights realisation. The fact that the Right to Food Guidelines do not claim to support the
capacity of the duty-bearer to fulfil its obligations under the right to food and the capacity of
the rights-holders to claim this same right, probably has many reasons, some of which have to
do with political disagreements in the intergovernmental working group during the drafting
process. The subject of rights and obligations under an economic and social right is still
contested.
607
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 17: “A State claiming
that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that
this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and
accessibility of the necessary food.”
608
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para, 36.
609
Mowbray, “The Right to Food and the International Economic System”, supra note 590, at 546.
610
Voluntary Guidelines, supra note 589, Guideline 4.
91
2.3.4 The right to food defined internationally, regionally and nationally
Background
As we know, economic, social, and cultural rights were included in the Universal Declaration
of Human Rights adopted in 1948. So called subsistence rights – adequate food and nutrition
rights, clothing, housing and necessary conditions of care – are part of the right to an adequate
standard of living in UDHR Article 25. Asbjørn Eide argues that in order to enjoy these social
rights, there is a need to enjoy certain economic rights such as the right to property (UDHR,
Art. 17), the right to work (UDHR, Art 23) and the right to social security (UDHR, Art. 22
and 25).611
UDHR was, according to Eide, initially an expression of ideals to be achieved, imposing
above all a moral obligation on states. Gradually these ideas have been transformed into ‘hard
law’ (‘positive law’). At the international level this process started with the adoption of two
Covenants in 1966, and later on we have seen numerous more specific conventions. This
created international legal obligations for states, from which followed also the task to ensure
that the rights were incorporated into national law and administrative practice.612
In the early stages of defining the right to food in international human rights law, there were
debates about the nature of this right as an economic, social, and cultural right. Mutua points
out that socialism and Latin American and Caribbean states influenced the ICESCR, and
many other states, particularly in the West, interpreted its focus on socioeconomic justice as a
threat to ‘free market values’.613 It was also argued that the right to food is not an individual
right but rather a ‘programme right’ to be put into governmental policies in the economic and
social fields. Deviations from the “cultural individualism in the West”, can be traced back to
states in the global South and can be attributed to the influence of the newly independent
states in the UN standard setting from the 1950s onwards.614 However, these arguments have
been met by expert-led UN institutions based in New York and Geneva with
counterarguments that underline the individual nature of all human rights. A UN publication
“Right to adequate food as a human right”, from 1989, argued that because Article 11 of
ICESCR proclaims the right to food as “the right of everyone” this formulation implies that it
is a human right belonging to individuals, not a “broad collective proposition”.615 This is an
example of the kind of either/or thinking that has been characteristic of human rights
discourse.
A related debate, that in part is still on-going, was related to the objection that socioeconomic
rights are not legally enforceable. It was therefore argued that implementation of Article 11 is
a political matter – not a matter of law.616 Those in favour of ESCR as legally enforceable
rights on an equal footing with civil and political rights have met this with counterarguments
such as “the problem relating to the legal nature of social and economic rights does not relate
to their validity but rather to their applicability.”617 A group of “authoritative experts” coming
611
Asbjørn Eide, “Human Rights Requirements to Social and Economic Development”, 21 Food Policy (1996)
23-29, at 29.
612
Ibid., at 30-31.
613
Mutua, “Standard Setting in Human Rights”, supra note 296, at 576.
614
Ibid., at 576.
615
Centre for Human Rights, Study Series 1: Right to Adequate Food as a Human Right (New York: United
Nations, 1989), para. 42.
616
Ibid., para. 43.
617
Martin Scheinin, “Economic and Social Rights as Legal Rights”, in A. Eide, C. Krause & A. Rosas (eds),
Economic, Social and Cultural Rights: A Textbook, Second Revised Edition (Dordrecht: Martinus Nijhoff
Publishers, 2001) 29-54, at 29.
92
together to formulate the Limburg Principles of 1987, concerning the interpretation and
implementation of the ICESCR, held that “although the full realization of the rights
recognized in the Covenant is to be attained progressively, the application of some rights can
be made justiciable immediately while other rights can become justiciable over time.”618 In
other words, experts have rejected the political element of the right to food and argued in
favour of an individual, legally enforceable right. Again, tensions between the West and the
rest in giving meaning to human rights are visible.
As we have seen, the right to adequate food has been defined in instruments of international
human rights law, thereby setting a standard for national implementation of this right. Article
11 of the ICESCR protects in paragraph 1 “the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing and housing” and in
paragraph 2 it continues by “recognizing the fundamental right of everyone to be free from
hunger”.619
In the process of giving more concrete content and meaning to Article 11, the Committee on
Economic, Social and Cultural Rights (hereafter ‘Committee’) has played an important role.
The Committee is a body of independent experts that monitors the implementation of the
ICESCR.620 In 2008 the UN General Assembly adopted an Optional Protocol to the
ICESCR621 and it was opened for signature in 2009. Through the Optional Protocol the
Committee can begin to review individual complaints in a similar way to that of a court. Since
this has procedure has not yet started to function, it is so far mainly through so called general
comments and the reporting system that the Committee has given meaning and content to the
right to food. According to Craven general comments have, so far, been the main tool for
‘normative development’.622 Before the adoption of General Comment on the Right to
Adequate Food in 1999 the meaning of the right to food was not very clear.
The normative content
In General Comment No. 12, on the right to adequate food, the Committee on ESCR states
that this right shall “not be interpreted in a narrow or restrictive sense which equates it with a
minimum package of calories, proteins and other specific nutrients”.623 How “adequacy” is
defined is determined by prevailing social, economic, cultural, climatic, ecological and other
conditions in the society concerned.624 The “core content” of this right implies, according to
the Committee, “the availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals, free from adverse substances, and acceptable within a given
culture”.625 Availability has been defined as “possibilities either for feeding oneself directly
from productive land or other natural resources, or for well functioning distribution,
618
Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural
rights, 1987, Principle No. 8. UN doc. E/CN.4/187/17.
619
Adopted on 16 December 1966, entered into force on 3 January 1976, 993 UNTS 3. Regardless of the fact
that Article 11 of ICESCR makes a distinction between the “right to adequate food” and the “fundamental right
of everyone to be free from hunger”, the concept of “the right to food” covers both of these aspects. See Philip
Alston, “International Law and the Right to Food”, in A. Eide, W.B. Eide, S. Goonatilake, J. Gussow &
Omawale (eds), Food as a Human Right (Tokyo: The United Nations University, 1984) 162-174, at 167.
620
On the Committee, see Matthew Craven, “The Committee on Economic, Social and Cultural Rights”, in A.
Eide, C. Krause & A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook, Second Revised Edition
(Dordrecht: Martinus Nijhoff Publishers, 2001) 455-472, at 460.
621
GA resolution A/RES/63/117 (2008).
622
Craven, “The Committee on Economic, Social and Cultural Rights”, supra note 620, at 468.
623
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
624
Ibid., para. 7.
625
Ibid., para. 8.
93
processing and market systems that can move food from the site of production to where it is
needed in accordance with demand.”626
In order for the right to adequate food to be realised everybody should have physical and
economic access at all times to adequate food or means for its procurement.627 “Accessibility”
has been divided into economic and physical accessibility. The first concept implies that
“personal or household financial costs associated with the acquisition of food for an adequate
diet should be at a level such that the attainment and satisfaction of other basic needs are not
threatened or compromised.” Physical accessibility refers to the importance of adequate food
being accessible to everyone, “including physically vulnerable individuals, such as infants and
young children, elderly people, the physically disabled, the terminally ill and persons with
persistent medical problems, including the mentally ill.” Certain groups, such as victims of
natural disasters, people living in disaster-prone areas and other specially disadvantaged
groups, e.g. indigenous populations, “may need special attention and sometimes priority
consideration with respect to accessibility of food.”628
In Article 11(2), on the right to be free from hunger, three objectives are specially outlined,
namely, to improve methods of production, conservation, and distribution of food. To achieve
these objectives states should take necessary measures and programmes. In addition, reference
is made to technical and scientific knowledge and the development or reform of agrarian
systems. As the right to be free from hunger acts as a “sub-norm”629 to the right to food, it can
be assumed that the specific measures are intended to the right to food in general, not merely
to the right to be free from hunger.630
According to Craven, the purpose of agrarian reform631 in the context of the right to food is
not always clear. Nevertheless, as Craven points out, indirectly inequities in land distribution
contribute to poverty and thus also to inadequate access to food. However, it is clear that the
inclusion of a reference to developing and reforming of the agrarian systems does not mean
that states which do not initiate agrarian reforms would automatically be violating the
Covenant.632 The most effective way to implement the right to food varies depending on the
situation and context.633
Even though the Committee has not clarified the necessity of an agrarian reform in the general
comment on the right to food it has not disregarded this aspect of Article 11(2). Indirectly the
Committee, on several occasions, makes reference to rural development, for example when it
626
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 12.
627
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 6.
628
Ibid., para. 13.
629
Amartya Sen has argued that the right to be free from hunger is a “metaright”. Such a “metaright” can be
defined as “the right to have policies p(x) that genuinely pursues the objective of making the right to x
realisable.” For example, in many countries where hunger is widespread, it might not be feasible to guarantee the
right to be free from hunger for everybody in the near future, but policies that would rapidly realise freedom
from hunger, do exist. See Amartya Sen, “The right not to be hungry”, in P. Alston and K. Tomasevski (eds),
The Right to Food (Netherlands Institute of Human Rights and Martinus Nijhoff Publishers, 1984) 69-81, at 70-
71.
630
Matthew Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford: Clarendon
Press, 1995) at 316-317.
631
The terms ”land reform” and ”agrarian reform” should not be used as synonyms even though they have much
in common. The former term refers to a redistribution of land ownership to achieve a more equitable access to
resources while an agrarian reform also includes supporting measures designed to make the reformed sector
more productive. See Cristina Liamzon, “Agrarian reform: A continuing imperative or an anachronism?”, in
Deborah Eade (ed.), Development and Rights (Oxford: Oxfam GB, 1998) 101-113, at 103.
632
Craven, The International Covenant on Economic, Social and Cultural Rights, supra note 630, at 322.
633
See General Comment No. 12, (1999) on the right to adequate food, supra note 577, paras. 21-22.
94
makes clear that the obligation to fulfil the right to food means that the state must take active
measures to strengthen access to and utilisation of resources and means to ensure
livelihoods.634 In addition, in the guidelines regarding the form and content of reports to be
submitted by States Parties under Articles 16 and 17 of the Covenant, it asks the State Party to
describe legislative measures in the context of an agrarian reform taken to ensure an equitable
distribution of food supplies.635 In its concluding observations on State Party reports the
Committee encourages agrarian reforms in cases where there is a high degree of concentration
of land ownership.636
The UN Special Rapporteur on the right to food, has, in the capacity of an independent expert
also played a significant role in giving meaning and content to the right to food. In 2002,
Special Rapporteur Jean Ziegler made clear that access to land and agrarian reform must form
a key part of the right to food. The rapporteur pointed out that hunger is predominately a rural
problem and that rural poverty is often closely linked to extreme inequity in access to land.
Moreover, as it is increasingly understood that small farms are more efficient than large
ones,637 the rapporteur stated that the notion of “developing or reforming agrarian systems in
such a way as to achieve the most efficient development and utilization of natural resources”,
used in Article 11(2)(a), can be understood as promoting agrarian reform to encourage small-
scale farming.638 The current Special Rapporteur, Olivier De Schutter, has continued along the
same lines, stating that investments should be directed at promoting sustainable forms of
agricultural production, benefiting small-holders who are most in need of support. He notes
that the global food crisis with the surge in food prices in 2006-2008 was “the result of
policies that have systematically undermined the agricultural sector in a number of developing
countries over a period of 30 years.”639 In his report from 2008, he called for structural
measures, leading to a profound reform of the global food system.640 This shows that experts
mandated by the UN have not defined the right to food in narrow terms solely as an
individual, legally enforceable entitlement. They have not avoided putting the right to
adequate food into a political and economic context, calling for structural reforms.
The right to food is not only guaranteed in the ICESCR. In the Convention on the Right of the
Child, two articles address the issue of nutrition. In Article 24(1) “States Parties recognize the
right of the child to the enjoyment of the highest attainable standard of health” and shall take
appropriate measures “[t]o combat disease and malnutrition, including within the framework
634
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
635
Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under
Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, Report of the
Committee on Economic, Social and Cultural Rights, 88-100. UN doc. E/1991/23.
636
Committee on Economic, Social and Cultural Rights, Concluding Observations on Paraguay (1996), UN doc.
E/C.12/1/Add.1, para. 9; Concluding Observations on Guatemala (1996) UN doc. E/C.12/1/Add.3, paras. 10 and
24; Concluding Observations on Peru (1997), UN doc. E/C.12/1/Add.14, para. 12; Concluding Observations on
Brazil (2003), UN doc. E/C.12/1/Add.87, paras. 31, 40 and 61. In these concluding observations the Committee
makes reference to the situation of indigenous peoples, landless peasants or in general the rural population. In its
concluding observations on the report of the Philippines, the Committee notes that the government has failed to
meet its own targets in relation to the implementation of an agrarian reform. Also, the Committee states that:
“The inadequacy of the agrarian reform programme appears to have had a negative impact upon the full
realization of the right to food as enshrined in Article 11 of the Covenant”. Concluding Observation on the
Philippines (1995) UN doc. E/C.12/1995/7, para 19.
637
Food and Agriculture Organization of the United Nations, The State of Food Insecurity in the World 2003,
(FAO: Rome, 2003) at 6.
638
Jean Ziegler, “The right to food”, report of Special Rapporteur of the Commission on Human Rights on the
right to food to the General Assembly, Fifty-seventh session, 2002, paras. 22-24 and 30. UN doc. A/57/356.
639
Report of the Special Rapporteur on the right to food, Olivier De Schutter, “Building Resilience: A Human
Rights Framework for World Food and Nutrition Security”, paras 7 and 8. UN doc. A/HRC/9/23 (2008)
640
Ibid., para.6.
95
of primary health care, through […] the provision of adequate nutritious foods and clean
drinking-water;”641 In Article 27(3) it is stated that States Parties “shall take appropriate
measures to assist parents and others responsible for the child to implement this right and
shall in case of need provide material assistance and support programmes, particularly with
regard to nutrition, clothing and housing.” The Convention on the Elimination on All Forms
of Discrimination against Women guarantees “adequate nutrition during pregnancy and
lactation” in Article 12(2).642 The way the committees monitoring these conventions have
contributed to giving meaning to these nutrition-related rights is outside the scope of this
chapter.
Both civil and political rights, economic, social and cultural rights, and collective rights are
included in the African Charter on Human and Peoples’ Rights. There is no categorisation of
the three sets of rights; the Charter is, in other words, of an integrated nature.643 Unlike the
ICESCR, the African Charter does not use the concept of “progressive realisation” in relation
to economic, social and cultural rights. Only in Article 16, which guarantees the best
attainable state of physical and mental health, can the language of “progressive realisation”
be found. In the other provisions the rights are set forth in a manner providing States Parties
with obligations which are of immediate application.644
As all rights enshrined in the Africa Charter are placed on an equal footing, the African
Commission on Human Rights has, in exercising its monitoring functions,645 the ability to
adopt a ‘violations approach’ in cases where a State Party has failed to fulfil its obligations
with respect to economic, social and cultural rights.646 This approach would have been
impossible if the Charter had incorporated the same ‘progressive realisation approach’ that
usually is the case regarding economic, social and cultural rights. In a violations case-based
approach, determinations can be made with respect to real-life situations where the
Commission makes a decision with respect to cases of specific allegations of a State Party’s
failure to fulfil its obligations.647
The African Charter does not guarantee the right to adequate food, the right to housing or the
right to an adequate standard of living as such. According to some authors, this can be seen as
641
Convention on the Rights of the Child, GA Res. 44/25 of 20 November 1989, entered into force 2 September
1990. Article 24(1)c.
642
Adopted 18 December 1979, entered into force 3 September 1981.
643
In the Preamble of the African Charter on Human and Peoples’ Rights the principle of interdependence is
made clear: “Convinced that it is henceforth essential to pay particular attention to the right to development and
that civil and political rights cannot be disconnected from economic, social and cultural rights in their conception
as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the
enjoyment of civil and political rights”. African Charter on Human and Peoples’ Rights, adopted on 27 July 1981
entered into force on 21 October 1986, 21 I.L.M. 59 (1982). See also Fons Coomans, “The Ogoni Case Before
the African Commission on Human and Peoples’ Rights”, 52 International and Comparative Law Quarterly
(2003) 749-760, at 750-751.
644
Chidi Anselm Odinkalu, “Implementing Economic, Social and Cultural Rights under the African Charter on
Human and Peoples’ Rights”, in Malcom Evans and Rachel Murray (eds), The African Charter on Human and
Peoples’ Rights: The System in Practice, 1986-2000 (Cambridge: Cambridge University Press, 2002) 178-218,
at 196. See also Nana K.A. Busia Jr and Bibiane G. Mbaye, “Filing Communications on Economic and Social
Rights under the African Charter on Human and Peoples’ Rights (The Banjul Charter)”, 3 East African Journal
of Peace & Human Rights (1996) 188-199, at 192.
645
The mandate of the African Commission is established in Article 45 of the African Charter on Human and
Peoples’ Rights.
646
Odinkalu, “Implementing Economic, Social and Cultural Rights”, supra note 644, at 196-198. See also
Coomans, “The Ogoni Case”, supra note 643, at 758-759.
647
Chidi Anselm Odinkalu, “Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social,
and Cultural Rights Under the African Charter on Human and Peoples’ Rights”, 23 Human Rights Quarterly
(2001) 327-369, at 351.
96
a significant disappointment from the promise of the Preamble.648 However, these rights are
covered by a combination of other provisions. Here, one central provision is Article 5, which
recognises respect for human dignity. However, also those economic, social and cultural
rights enlisted in Articles 14-17 of the Charter are of significance. In its case law the African
Commission on Human Rights has given an extensive interpretation of the economic and
social rights provisions which are included in the Charter so that also concerns in relation to
food, clothing, forced evictions, safe drinking water, electricity, and basic medicine can be
read into the Charter.649 The concept of human dignity has thus been given substance and
meaning and can be seen as an over-arching concept of the Charter.650 According to Odinkalu,
recognising “respect of the dignity inherent in the human person” as a distinct right and as a
foundational value in the African Charter breaks down the artificial barriers imposed on
economic, social and cultural rights and opens up vast possibilities for implementing these
rights under the African Charter.651
In the inter-American system of human rights, the right to adequate food is foremost protected
in the Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (Protocol of San Salvador).652 However, an analysis of
the definition given to the right to adequate food under the inter-American system is outside
the scope of this chapter.
Implementing the right to food through national strategies against food insecurity
In Article 2(1) of the ICESCR the State Party “undertakes to take steps, (…) to the maximum
of its available resources, with a view to achieving progressively the full realization of the
rights recognised in the present Covenant”. The concept of “achieving progressively” has
often been used as an argument for considering economic, social and cultural rights as mere
“aspirations”, not as enforceable individual rights.653 However, the Committee on Economic,
Social and Cultural Rights has made clear that the concept is used as a recognition of the fact
that “full realization of all economic, social and cultural rights will generally not be able to be
achieved in a short period of time”, and it should not be used in a way depriving Article 2 of
any meaningful content. All States Parties are under an obligation to “move as expeditiously
648
See, e.g., J. Oloka-Onyangio, “Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social
Rights in Africa”, 26 California Western International Law Journal (1995) 1-23, at 15.
649
See Coomans, “The Ogoni Case”, supra note 643, at 751; Odinkalu, “Analysis of Paralysis or Paralysis by
Analysis?”, supra note 647, at 341 and 364. In communications 54/91, 61/91, 98/93, 167/97 and 210/98 v.
Mauritania, the African Commission found that lack of sufficient food, blankets and adequate hygiene in
detention centres constitutes a violation of Art. 16 of the African Charter. See Compilation of Decisions on
Communications of the African Commission on Human and Peoples’ Rights: Extracted from the Commission’s
Activity Report 1994-2001 (The Gambia: Institute for Human Rights and Development in Africa, 2002) at 186.
See also communication 100/93 v. Zaire in which the Commission held that “The failure of the Government to
provide basic services such as safe drinking water and electricity and the shortage of medicine (…) constitutes a
violation of Article 16.” (Ibid., at 366.) In communication 155/96 v. Nigeria the African Commission is of the
view that right to adequate food is implicitly protected by other rights guaranteed in the Charter.
650
Coomans, “The Ogoni Case”, supra note 643, at 751.
651
Odinkalu, “Analysis of Paralysis or Paralysis by Analysis?”, supra note 647, at 366.
652
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Protocol of San Salvador), adopted on 17 November 1988, entered into force on 16 November
1999, OAS Treaty Series No. 69.
653
Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social
and Cultural Rights (Antwerpen: Intersentia, 2003) at 311; Asbjørn Eide, ”Economic, Social and Cultural Rights
as Human Rights”, in A. Eide, C. Krause and A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook,
Second Revised Edition (Dordrecht: Martinus Nijhoff Publishers, 2001) 9-28, at 10.
97
and effectively as possible towards” full realisation of the rights guaranteed in the
Covenant.654
Furthermore, Article 2 imposes some immediate obligations on the States Parties. In General
Comment No. 3, on the nature of States Parties obligations, the Committee underlines that the
notion in Article 2(1) “undertakes to take steps” imposes obligations that are of immediate
effect. This means that states must take steps “within a reasonably short time after the
Covenant’s entry into force for the States concerned” and also that the measures aimed at
achieving full realisation should be “deliberate, concrete and targeted”.655 Moreover, the
obligation to guarantee the rights without discrimination, put forward in Article 2(2), is also
not subject to limitation.656 Discrimination in access to food or means for its procurement on
the grounds of “race, colour, sex, language, age, religion, political or other opinion, national
or social origin, property, birth or other status” constitutes a violation of the Covenant.657
According to the General Comment the State enjoys a margin of discretion to choose its own
approaches and ways of implementing the right to adequate food, as long as whatever steps
are taken to ensure that everyone is free from hunger and as soon as possible can enjoy the
right to adequate food.658 Particular attention should be given to the need to prevent
discrimination in access to food or resources for food. This should include guarantees of full
and equal access to economic resources. Rights of women to inheritance and ownership of
land and other property is particularly mentioned.659 Moreover, even where a State faces
severe resource constraints, “measures should be undertaken to ensure that the right to
adequate food is especially fulfilled for vulnerable population groups and individuals”.660
In order to take measures which are “deliberate, concrete and targeted”, and indeed live up to
the obligation to “take steps”, states must engage in effective implementation and monitoring
of the rights enshrined in the ICESCR. Designing and adopting programmes for
implementation can be seen as steps in the process of realising the right to adequate food for
all and have been regarded essential preconditions for compliance with the obligations set
forth in the Covenant.661
States should first identify those who are food insecure and then formulate a national strategy
for recreating access to food for these groups and the population as a whole.662 Although
every state has a margin of discretion in applying its own implementation process, the
Committee on Economic, Social and Cultural Rights makes clear that as the ICESCR requires
States Parties to take the necessary steps “to ensure that everyone is free from hunger and as
soon as possible can enjoy the right to adequate food”, this means that a national strategy to
ensure food security must be adopted.663
654
General Comment No. 3 (1990) on the nature of States parties obligations (Article 2, para. 1 of the
International Covenant on Economic, Social and Cultural Rights), Report of the Committee on Economic, Social
and Cultural Rights, UN doc. E/1991/23, at 83-87, at para. 9. See also General Comment No. 12, (1999), para.
14.
655
General Comment No. 3, (1990), supra note 654, para. 2.
656
Ibid., para. 1.
657
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 18.
658
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 21.
659
Ibid., para. 26.
660
Ibid., para. 28.
661
Sepúlveda, The Nature of the Obligations, supra note 653, at 360-361.
662
Asbjørn Eide, “The Realization of Economic, Social and Cultural Rights. The Right to adequate food and to
be free from hunger: Updated study on the right to food”, submitted by Mr. Eide in accordance with Sub-
Commission decision 1998/106, 1999, para. 62. UN doc. E/CN.4/Sub.2/1999/12.
663
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 21.
98
National strategies that address the essential issues causing hunger and malnutrition are
important tools when implementing the right to food. The Right to Food Guidelines reviewed
give further guidance for states that are about to create rights-based national strategies for
food security. Unfortunately, the guidelines are not very clear with regard to the important
aspect of food as a human rights issue, i.e., obligations to respect, protect and fulfil the right
to adequate food.
Actors calling for a Right to Livelihoods
The Committee on ESCR has raised issues of market access, land, and discrimination, i.e.,
broader issues of livelihoods. This has, however, not satisfied activists in the global South.
At the World Social Forum 2009 a group of international NGOs, led by the Programme on
Women’s Economic, Social and Cultural Rights (PWESCR), came together to launch the
Global Network on Women and the Right to Livelihoods. The Global Network aims to
develop a common understanding of the right to livelihoods and is working towards having
the right recognised in international human rights law.664 The right to livelihoods, currently
not recognised as a human right in any international instrument, is seen as connected to issues
of land, water, forest, food security, food sovereignty, food production, and income
security,665 i.e. issues related to the right to food, natural resources and markets.666
Conceptually, it is much more than the right to work – the right to livelihoods includes
options that are outside of the workplace and yet crucial for many people’s survival.667
The Global Network aims to work from the local to the global level, making women’s right to
livelihoods visible, to “restore a new language, a new imagination, a new politics and a new
economy to the world.” The actors highlight that this new polity and politics cannot come
from those who use domination, extraction and power.668 In these processes, the right to
livelihoods is beginning to be defined from the ground up.669
This is an example of how actors strive to expand and reframe food related rights in the
international human rights framework in a way that makes sense for them and the people they
work with in the South.
PWESCR claims that a livelihoods perspective gives agency, especially to women, who are
usually seen as a vulnerable group that are dependent on male breadwinners.670 In most
countries of the South women have invisible roles as workers in agriculture.671 Yet rural
women often play a vital role in providing for their families and communities, growing crops,
gathering firewood or carrying water. However, lack of women’s legal rights to land, lack of
support for women after displacement (e.g. due to ‘development’ projects), and lack of credit
664
Emma Sydenham, “Women and the Right to Livelihoods: World Social Forum 2009”, report published by
Programme on Women’s Economic, Social and Cultural Rights (PWESCR), at 26-27.
665
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 4.
666
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods in The
Human Rights Framework”, Discussion Paper No. 3, July 2011, at 1. Available at http://www.pwescr.org/
PWESCR_Discussion%20Paper%20Final_30-7-2011.pdf, visited 18 December 2011.
667
Ibid., at 2 and 11.
668
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 25.
669
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods”, supra
note 666, at 1.
670
Notes from presentation by Priti Darooka, Executive Director of PWESCR, Turku, Finland, November 2010.
671
80 to 90% of food production in India is carried out by women. Mama cash, “Right to Food is a Women’s
Issue”. Available at http://www.mamacash.org/page.php?id=2532, visited 18 December 2011.
99
all have negative impact on food security. Simultaneously, women are losing control over
seeds, and livelihood-based farming is becoming more and more marginalised.672
The concept of livelihoods comes from the development discourse, and ‘sustainable
livelihood approaches’ are popular among a diverse group of development agencies today,
including Oxfam Malawi. These approaches were developed in the late 1990s and include
focus on rights and power.673 The campaign to develop a ‘right to livelihoods’ can thereby
also be seen as a result of increasing interaction between development and human rights
actors.
PWESCR notes that, at the grassroots level, one of the best ways to explain the right to food
is by discussing livelihoods. Moreover, it points out that referring to the right to livelihood
illustrates that the right to food is not, essentially, the right to be fed, which is a common
misconception about the right to food. PWESCR and its partners situates the right to
livelihood—to make a living and survive with dignity—at the core of the right to food, and
they frame this right as the right to produce one’s own food or earn sufficiently to purchase
it.674 PWESCR is based in India, and as we will see below, the right to food has nationally
been defined in a very specific and narrow way as the right to be fed.
Giving meaning to food rights in India
In this chapter, I have so far reviewed how transnational expert institutions have given
meaning to the right to food as a norm of international human rights law and how NGO actors
strive for a new right – the right to livelihoods – as a complement to how existing rights have
been defined. At the national level, different institutions play a role in defining food and
livelihood related rights and the content usually reflects the specific historic, social, economic
and political context of the country concerned. Although historically, courts have played a
marginal role in the context of socioeconomic rights in most jurisdictions, their role has been
strengthened over the space of the two past decades. In a significant number of jurisdictions,
adjudicatory bodies have intervened to protect a range of social rights,675 thereby contributing
to giving meaning to these rights, including food rights. A careful analysis of the food-related
cases, which tend to be litigated under social security, land and labour rights,676 is outside the
scope of this thesis, especially since Malawi does not belong to these jurisdictions.
I will, however, highlight India as one jurisdiction in which food litigation has lead to the
right to food being defined in a particular way. Part IV of the Indian Constitution lists so
called Directive Principles of State Policy (DPSP). Many of the provisions here correspond to
those protected in ICESCR. Article 43 provides that the State shall secure work, a living
wage, conditions of work that ensure a decent standard of living to all workers, agricultural or
672
Sydenham, “Women and the Right to Livelihoods”, supra note 654, at 18.
673
CARE, Oxfam and UNDP were among the first development organizations to develop sustainable livelihood
approaches. See Diana Carney, Sustainable Livelihood Approaches: Progress and Possibilities for Change,
(DFID, 2003) at 10. Available at http://www.eldis.org/vfile/upload/1/document/0812/SLA_Progress.pdf, visited
18 December 2011. See also Ian Scoones, “Sustainable Rural Livelihoods: A Framework for Analysis”, IDS
Working Paper No. 72, 1998. Available at http://www.ids.ac.uk/files/dmfile/Wp72.pdf, visited 10 May 2012.
674
Programme on Women’s Economic, Social and Cultural Rights, “Locating Women’s Livelihoods”, supra
note 666, at 12.
675
Malcolm Langford, “The Justiciability of Social Rights: From Practice to Theory”, in M. Langford (ed.),
Social rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge
University Press, 2008) 3-45, at 3.
676
Langford, “The Justiciability of Social Rights”, supra note 675, at 4.
100
otherwise (compare to Article 11 and 15 of ICESCR).677 In the 1970s and 1980s the Indian
Supreme Court started to find creative interpretations of constitutional provisions in a way
that transcended its earlier conservative phase and allowed room for a positive direction in its
interventions in issues regarding the poor and disadvantaged.678
Although the issue of recurrent famines in some regions of India has received mixed reactions
in courts, more recent engagements of the Indian Supreme Court, through Public Interest
Litigation cases, forced the Court to confront the paradox of food scarcity while State silos
overflowed with food grains. It was the People’s Union for Civil Liberties that approached the
Court in April 2001 demanding relief after several states in the country faced a second or third
successive year of drought. Despite having 50 million tonnes of food stocks these states failed
to make available minimum food requirements to the suffering population.679 The Court
ordered state governments to make sure that “food is provided to the aged, disabled, destitute
women, destitute men who are in danger of starvation, pregnant and lactating women and
destitute children, especially in cases where they or members of their family do not have
sufficient funds to provide food for them”.680 Later the same year the Court made a detailed
order, converting eight nutrition-related schemes of free food distribution, subsidised grain for
the poorest of the poor, midday meals, family benefit schemes etc into legal entitlement,
making it obligatory for the government to implement them.681 The Court even specified the
minimum quantities of food and nutrition (counted in calories) that had to be made available
according to age group.682 This means that the Court has defined the right to be free from
hunger in a very detailed and narrow way, as a right to be fed by benefit schemes, which is
quite a long way away from the right to livelihoods as envisioned by PWESCR.
The directions issued recognise the State obligation to provide the minimum core of the right
to food. However, decisions in the areas of the right to work and the right to shelter shows
that the judiciary has, in parallel, deferred to a kind of executive policy that undermines these
and other socioeconomic rights. Millions of people have been displaced as a result of the
policy decision to continue with large dams and other projects that weaken the ability of
already socially and economically disadvantaged people to find meaningful livelihood. Many
of these policies are, according to Muralidhar, inconsistent with state obligations under
constitutional and international law.683 The Court’s unwillingness to make orders contrary to
these policies shows the limits of a legal approach to livelihood related policy issues.
It is in this context that civil society actors have come together under the Right to Food
Campaign, formulating a set of common ‘essential demands’ relating to the forthcoming
National Food Security Act. These ‘essential demands’ are claimed to set the Act in the
context of the nutritional emergency in India and the need to address the structural roots of
hunger. The campaign demands a comprehensive Food Entitlements Act (notice that the
677
S. Muralidhar, “India: The Expectations and Challenges of Judicial Enforcement of Social Rights”, in M.
Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law,
(Cambridge: Cambridge University Press, 2008) 102-123, at 103.
678
Ibid., at 122.
679
Ibid., at 116.
680
Case of People’s Union for Civil Liberties v. Union of India (2001), cited in Muralidhar, “India”, supra note
677, at 116.
681
Interim Orders of the Supreme Court, 28 November 2001, Available at
http://www.righttofoodindia.org/orders/interimorders.html, visited 15 December 2011. See Basudeb Guha-
Khasnobis and S. Vivek, “The Rights-Based Approach to Development: Lessons from the Right to Food
Movement in India”, in B. Guha-Khasnobis, S. S. Acharya & B. Davis (eds), Food Insecurity, Vulnerability and
Human Rights Failure (Hampshire: Palgrave Macmillan, 2007) 308-327, at 310.
682
Muralidhar, “India”, supra note 677, at 117.
683
Ibid., at 122.
101
concept ‘entitlements’ is used instead of ‘food security’, indicating the preference among civil
society). The campaign continues along the lines of giving the right to food a specific
definition, demanding “a universal Public Distribution System (providing at least 50 kgs of
grain per family with 5.25 kgs of pulses and 2.8 kgs of edible oils); special food entitlements
for destitute households (including an expanded Antyodaya programme); consolidation of all
entitlements created by recent Supreme Court orders (e.g. cooked mid-day meals in primary
schools; support for effective breastfeeding (including maternity entitlements and crèches);
safeguards against the invasion of corporate interests in food policy; and elimination of all
social discrimination in food–related matters.”684 In a similar manner as the Right to Food
Project in Malawi, actors in India have drafted a Food Entitlements Act (draft 2009), but with
a rather different content and meaning given to the right to food. The main difference is that
while the Malawian draft focuses mainly on the negative state obligations, as will be shown in
part III, the Indian draft includes far-reaching, specific positive obligations in the area of
social security.
The Right to Food Campaign in India applies a legal approach, aiming at further legislation
and legal recognition of food rights,685 as a tool for social change. The campaigners call for
protection of existing legal entitlements but also pushes to go beyond, calling for new
entitlements and also fundamental changes in economic policy. The campaign has repeatedly
called for a comprehensive food security bill that takes into consideration issues related to
production, procurement and distribution together.686 Such a comprehensive Right to Food
Act “would require a fundamental realignment of the manner in which society and the state
uses its resources today.”687 In a statement commenting on the National Advisory Council’s
proposed National Food Security Bill, a Right to Food Campaign accuses the Bill of being
‘minimalist’ and far from the comprehensive act they had pushed for: “The recommendations
essentially deal only with a cereal-based targeted Public Distribution System and are a far cry
from the comprehensive approach required to truly ensure food security for all.”688 The Right
to Food Campaign in India is an example of struggles between different state and non-state
actors over definitions of food rights. It shows how difficult it is to use rights-based
arguments to push for structural change.
2.3.5 Concluding remarks
Food security programmes and food aid have been the development response to hunger while
the human rights response has been establishing a legal entitlement that in theory can be
claimed from duty-bearers. Despite this difference in emphasis, the two discourses are closely
related to each other, both underlining physical and economic access to food. Food security
has evolved from a focus on supply and availability of food on a national level, to access to
food on a household and individual level. Physical and economic access to food is a key
factor in how the right to adequate food has become to be defined.
In this chapter we have seen that the poor and the hungry, who are mostly women, live in
rural areas and struggle for their daily livelihoods. We have seen that there are several
684
Right to Food Campaign, “Right to Food Act, Introduction”. Available at http://www.righttofoodindia.org/
right_to_food_act_intro.html, visited 15 December 2011.
685
Compare to how ‘legal approach’ is used by Goodale, “Locating Rights”, supra note 25, at 6.
686
Right to Food Campaign’s Response to NAC’s decisions regarding the National Food Security Act,
November 2010.
687
Food Entitlements Act, Draft of 12th September 2009, at 4. Available at http://www.righttofoodindia.org/
data/rtf_act_draft_charter_sept09.pdf, visited 15 December 2011.
688
Right to Food Campaign’s Response, supra note 686.
102
competing actors giving meaning to the right to food: UN-led expert institutions, national
courts, NGOs and other civil society actors. The PWESCR’s efforts to establish a right to
livelihoods in the international human rights system and the Right to Food Campaign in India
are examples of how civil society actors aim at giving meaning to food rights in a way that
makes sense to them and the people they work with. They push for redefinition and expansion
of current legal interpretations of the right to food, calling for what they feel are ‘just
entitlements’. For the PWESCR and its partners the right to livelihoods makes better sense in
the lived reality of marginalised groups, especially women, whom they claim to represent.
We have seen certain tensions in what kind of meaning and content the right to food should
have. The first tension is between the right to food as a broad, collective proposition that is to
be implemented through political programmes and between an individual, justiciable
entitlement to be claimed through courts or similar forums. The Committee on ESCR and the
Special Rapportuer on the right to food have been in favour of the right to food being an
individual, legal entitlement but at the same time not avoided broader, structural issues
causing hunger and lack of livelihoods. The second tension is between the ambition to link the
right to food to broader issues of livelihoods and a narrower welfare-ist approach to fulfil the
right to be free from hunger through social protection measures, including food distribution.
These tensions will appear again in the Malawi case-study in part III. We have, moreover,
seen that the concrete content of a human rights-based approach to food security is not clear,
despite the Right to Food Guidelines.
2.4 The role and meaning of ‘human rights principles’ in development practice
In this chapter I first highlight attempts to define human rights-based approaches to
development and then I concentrate on exploring the meaning given to key principles in these
approaches. The following concepts are analysed: express linkage to human rights, equality
and non-discrimination, accountability, participation and empowerment. It is clear that an
emphasis on principles such as participation, accountability, and empowerment is not unique
to human rights-based approaches to development practice. Equality and a focus on
vulnerable and marginalised groups suffering from discrimination has also been part of ‘good
development practice’ for a long time. This chapter tries to resolve what exactly an emphasis
on human rights adds to these principles. For each principle my ambition is to see how it has
been interpreted and applied in the development discourse as an element of ‘good
development practice’ and how it is understood in human rights discourse. Where it is
possible, I also show what happens to the principle when the two discourses come together as
a ‘human rights-based approach to development cooperation’. Moreover, I try to identify what
added or new value human rights thinking may bring to the principle in question.
2.4.1 Defining human rights-based approaches to development
From the start it is good to be aware of the distinction between rights-based approaches to
public policy at the national level and human rights-based approaches to development
cooperation. This section mainly deals with the latter, keeping in mind that there are “plural
rights-based approaches, with different starting points and rather different implications for
development practice.”689 Darrow and Tomas point out that among UN agencies alone there is
significant differentiation between mandates, operational frameworks and circumstances. It
may be possible to generalise certain principles, but with regard to programming frameworks
it is understandable that one size does not fit all. Nonetheless, conceptual clarity is important
689
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1415.
103
in order to highlight the distinct opportunities and challenges involved in human rights-based
approaches.690
Sometimes the concept ‘rights-based approach to development’ is used instead of ‘human
rights-based approach to development’. Some development actors are consistent in their usage
of the terms, making a difference between the two terms, while others are inconsistent in the
usage of the terms. (And some others use ‘rights-based approach’ simply as shorthand for
‘human rights-based approaches’.)691 The difference is in emphasis: ‘human rights-based’ is
seen as being linked more explicitly to the international human rights framework and is
sometimes described as ‘legalistic’ (i.e., applying a definition of human rights as those
standards agreed upon in international instruments). ‘Rights-based approaches’ are seen to be
emphasising ‘empowerment’ of the poor and marginalised people and groups to claim their
rights, and usually makes more inspirational use of human rights language,692 (fitting better
with the philosophy of an actor-oriented perspective). The Oxfam programme in Malawi,
which is analysed in part III, applies a rights-based rather than a human rights-based
approach. Plipat has made a distinction between three variants of rights-based approaches:
popular, equity, and classical. The first one emphasises grassroots organising, the second
global advocacy, and the third international human rights standards.693 This again shows the
large variations and differences in emphasis.
These approaches are not necessarily mutually exclusive,694 but some commentators believe it
to be problematic when there is a lot of emphasis that ‘one-size of doing human rights-based
approaches does not fit all’, reflecting that there is no single, coherent way of doing this work,
thereby assuming that by invoking multiple expressions of the approach, so called human
rights-based approaches could cover most incorporations of human rights within the
development sector.695 It is feared that the notion of rights-based approaches can easily
become a loose and ill-defined idea, which everyone can adopt and interpret to fit their own
interests and agendas.696
In order to highlight the different approaches I devote a great deal of effort to reviewing the
meanings attached to human rights-based approaches in this thesis. Moreover, human rights-
based approaches do not account for all incorporations of human rights into the development
sphere. Therefore it is good to be aware of these distinctions.
The Common Understanding is probably the most ambitious attempt to define a human rights-
based approach to development cooperation and therefore it receives special attention in the
following sections. The Common Understanding makes clear that:
1. All programmes of development co-operation, policies and technical assistance
should further the realisation of human rights as laid down in the Universal
Declaration of Human Rights and other international human rights instruments.
2. Human rights standards contained in, and principles derived from, the Universal
Declaration of Human Rights and other international human rights instruments guide
690
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 483.
691
Hannah Miller, “From ‘Rights-Based to ‘Rights-Framed- Approaches: A Social Constructionist View on
Human Rights Practice”, 14 The International Journal of Human Rights (2010) 915-931, at 917.
692
Laure-Hélène Piron, “Learning from the UK Department for International Development’s Rights-Based
Approach to Development Assistance”, Overseas Development Institute, July 2003, at 7. Available at
http://www.odi.org.uk/resources/docs/2313.pdf, visited 10 May 2012.
693
Plipat, “Developmentazing Human Rights”, supra note 61, at 6.
694
Piron, “Learning from the UK”, supra 692, at 26.
695
Miller, “From ‘Rights-Based to ‘Rights-Framed- Approaches”, supra 691, at 918.
696
Harris-Curtis et al., The Implications for Northern NGOs, supra note 240, at 40.
104
all development cooperation and programming in all sectors and in all phases of the
programming process.
3. Development cooperation contributes to the development of the capacities of ‘duty-
bearers’ to meet their obligations and/or of ‘rights-holders’ to claim their rights.
The first point means that the aim of all activities is to contribute directly to the realisation of
one or several human rights. The second point means that human rights principles guide
programming in all sectors, and in all phases of the programming process. The third point
means that in a human rights-based approach to development cooperation “human rights
determine the relationship between individuals and groups with valid claims (rights-holders)
and State and non-state actors with correlative obligations (duty-bearers)”.697 The strong
emphasis on international human rights instruments makes it into a classical/legal approach,
which is natural for UN agencies bound by the UN Charter. However, UN agencies have been
creative in applying the Common Understanding and not all agencies use a legal approach.
The Common Understanding is further elaborated on in the report Frequently Asked
Questions on a Human Rights-Based Approach to Development Cooperation, listing a
number of essential attributes of the approach:
- “A human rights-based approach is a conceptual framework for the process of
human development that is normatively based on international human rights
standards and operationally directed to promoting and protecting human rights.”
- The main objective of development should be to fulfil human rights.
- In a human rights-based approach rights-holders and their entitlements are
identified, and the corresponding duty-bearers and their obligations are also
identified.
- Principles and standards derived from international human rights treaties guide
all development programming in all sectors and in all phases of the programming
process.698 The principles most often evoked are non-discrimination,
accountability and participation.
As we can see, these four points more or less repeat what is said in the Common
Understanding, and I take this as a sign that there is general agreement on these basic
attributes of the approach at the UN level. There seems to be agreement on the core elements
defining human rights-based approaches to development cooperation: Human rights-based
approaches work to strengthen the capacity of duty-bearers to respect, protect, and fulfil their
human rights obligations. Simultaneously, the rights-holders’ capacity to demand and claim
that their human rights are respected, protected, and fulfilled is strengthened. The aim of
human rights-based development is human rights realisation and the process of how this aim
is reached is informed by human rights principles.
It is not only within the UN that human rights have entered into development programming. A
wide range of development NGOs, such as Save the Children, Care International, Oxfam and
697
Common Understanding, supra note 50. The state carries legal obligations under international human rights
law, but also non-state actors have responsibilities that are taken into account in situation analysis by agencies
such as FAO and UNICEF. See Food and Agriculture Organization of the United Nations, Methods to Monitor
the Human Right to Adequate Food (Rome: FAO, 2008) at 40. Duty-bearers include elected and appointed
officials, civil servants, representatives of government and organisations (e.g. CSOs) retained by the government
to deliver services. They can be acting on the community level or the national level. Rights-holders are
individual citizens and non-citizens living within a state. The interests of rights-holders are sometimes
represented by organisations such as NGOs, INGOs, unions and other civil society groups.
698
OHCHR, “Frequently Asked Questions”, supra note 81, at 15-16.
105
ActionAid, have been exploring rights-based approaches to their work. Pettit and Wheeler
argue that the background to this trend is development practitioners began to recognise the
limits of their approaches and experienced a need to address structural causes of inequality
and exclusion and to confront these at all levels, i.e., legal, political, social, cultural, and
economic levels. Legal reforms and enforcement along with public awareness and action
became new methods of voicing demand and seeking accountability. There was general
disillusionment with projects. At the same time human rights groups needed to engage with
community-based organisations and membership associations instead of relying on
professionals to advocate on behalf of the rights-holders. In order to do that the human rights
professionals needed new skills such as community organising, participatory appraisals, etc.
These factors all contributed to blurring the traditional lines between rights and development.
And the need for change was mutual: development needed rights as much as rights needed
development.699
Donor interest in human rights strategies for development has also been considerable, for
instance in United Kingdom’s Department for International Development (DFID), The
Swedish International Development Agency (SIDA) and The Norwegian Agency for
Development (NORAD),700 and lately also Finland claims to apply a human rights-based
approach to development, promoting the position and rights of people as rights-holders and
the obligations of states as duty-bearers while emphasizing equality, non-discrimination and
the right to self-determination.701 With new aid modalities such as sector and budget support,
donor governments see opportunities to influence recipient government’s policies, but are at
the same time concerned with lack of accountability on the part of the recipient government.
In order to remedy the situation, there have been reforms of public institutions and support to
civil society in holding the government and public sector accountable. Human rights have
been arguments to back up this work, and have thereby also become part of outcome-driven
and managerial approaches of top-down development.
The OECD DAC Network on Governance has published a synthesis report of donor
approaches and experiences of integrating human rights into development. The authors have
used a five-part typology for the integration of human rights into development: (1) Implicit
human rights work; (2) human rights projects; (3) human rights dialogue (4) human rights
mainstreaming; and (5) human rights-based approaches. The report found that most agencies
were applying the three middle categories while a few were moving towards human rights-
based approaches. In human rights-based approaches, “human rights [are] considered
constitutive of the goal of development, leading to a new approach to aid and requiring
institutional changes.”702
The DAC report shows that still in 2005, when the report was published, the majority of
development interventions in the area of human rights were separate from socioeconomic
issues, such as water or health. The majority of direct interventions were civil and political
rights projects. At policy level there was emphasis on the positive place of human rights, but
human rights conditionality remained a feature of development programmes,703 indicating that
699
Jethro Pettit and Joanna Wheeler, “Developing Rights? Relating Discourse to Context and Practice”, 36 IDS
Bulletin (2005) 1-8, at 2.
700
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 480.
701
“Suomen kehityspoliittinen toimepideohjelma”, 16.2.2012. Available at http://www.formin.fi/public/default.
aspx?nodeid=15319, visited 15 May 2012.
702
Laure-Hélène Piron with Tammie O´Neil, “Integrating Human Rights into Development: A synthesis of
donor approaches and experiences”, prepared for the OECD DAC Network on Governance, September 2005, at
iii-iv. Available at http://www.odi.org.uk/resources/docs/4404.pdf, visited 15 May 2012.
703
Ibid., at iii-iv.
106
main attention is to create the conditions or infrastructure to promote and provide human
rights, such as better laws, courts, stronger NGOs, democratic institutions, more transparent
state apparatuses while at the same time linking aid to human rights criteria.704 What these
approaches have in common is that human rights enter into development programming as an
element of outside quality control.
Celestine Nyamu-Musembi and Andrea Cornwall make an overview of what multilateral
agencies, bilateral agencies and international development NGOs say about rights-based
approaches to development. The authors conclude that there are certain common elements and
principles, but with different emphasis. Most organisations see that the approach potentially
can transform development practice from a focus on identifying and meeting needs to
enabling people to claim their human rights. This entails (1) work with duty-bearers to
strengthen their capacity in respecting, protecting and fulfilling human rights, (2) work with
citizens and marginalised groups to claim their rights. The role the approach plays in the
concrete work of the different organisations is, however, distinctively different. Some
agencies tend to see human rights-based approaches as a broad set of principles defining an
overarching approach to development that can serve as a new way of repackaging
interventions. Participatory approaches as well as efforts to address issues of accountability
alongside efforts to enable people to empower themselves are examples of principles that
often are referred to in this context,705 as is shown in the following sections.
2.4.2 Five principles as key elements of human rights approaches to development
cooperation
As we have seen in the previous sections human rights-based approaches often come along
with an emphasis on so called human rights principles. These principles are seen as giving
guidance on the processes that should underpin legislation, policy, and implementation at all
levels and between all actors.706
Before the adoption of the Common Understanding and the further explanations given to the
approach in the report Frequently Asked Questions on a Human Rights-Based Approach to
Development Cooperation, five key principles were often used as a way to define human
rights-based approaches to development cooperation. Sometimes you also see the same
principles referred to as the acronym PANEL: participation, accountability, non-
discrimination and attention to vulnerable groups, empowerment and linkage to rights.707 The
principles can be seen as the operational expression of the idea that human rights and
development are interlinked, and they have implications for programming.
In the following I review these five interrelated key principles in another order: Express
linkage to human rights norms and standards, equality and non-discrimination, accountability,
participation, and empowerment.708 In the beginning of my research I used these five
704
See Uvin, Human Rights and Development, supra note 52, at 168.
705
Nyamu-Musembi and Cornwall, What is the ‘Rights-Based Approach’ all about?, supra note 225, at 45-46.
706
Clare Ferguson, “Linking Human Rights and Aid Effectiveness for Better Development Results: Practical
Experience from the Health Sector”, Report for the Human Rights Task Team of the OECD-DAC Network on
Governance, 2008, at 16. Available at http://www.oecd.org/dataoecd/41/53/43529192.pdf, visited 14 May 2012.
707
Human Rights Education Associates (HREA), “Guide for Applying Indicators within UN Human Rights-
Based Programming”, prepared for UNDP, November 2007, at 6. Available at http://www.hrbatoolkit.org/wp-
content/uploads/2011/02/HRBA_Indicators_Toolkit_HREA.pdf, visited 10 May 2012.
708
Mary Robinson focused on these five principles in her lecture “Bridging the Gap between Human Rights and
Development: From Normative Principles to Operational Relevance”, World Bank Presidential Lecture,
Washington, 3 December 2001. See also OHCHR, “Human Rights and Poverty Reduction”, supra note 243;
Jakob Kirkeman Hansen and Hans-Otto Sano, “The Implications and Value Added of a Rights-Based
107
principles as a starting point for describing what human rights-based approaches are all about
and it influenced the questions raised in the empirical research. When I started to analyse my
empirical data from Malawi, I was struck by how differently the actors involved in the three
food security related projects interpreted and applied the principles of equality and non-
discrimination, accountability, participation and empowerment. I therefore feel that it is
essential to take a closer look at them and try to pinpoint which dimensions are related to
human rights principle and which are those that rather belong to ‘good development practice’.
As the principles are very interrelated, I have not seen anyone who has made a deliberate and
conscious effort to put the principles in a hierarchical order. The order chosen in this review is
conscious, yet not suggesting a strict hierarchy of importance. The reason ‘express linkage to
human rights norms and standards’ is dealt with first is that this principle is the starting point
for any action or strategy that wants to move into the direction of using human rights norms as
a map for development policies and practices. It also has implications for situation or problem
analysis and therefore naturally comes first. Non-discrimination and equality is the one
principle that has the strongest legal justification in human rights law and is perhaps the
clearest and least contested of the principles, and therefore it is dealt with second. As many
agree that accountability under the human rights framework adds value because it gives a
clear link to obligations of duty-bearers to respect, protect and fulfil human rights of rights-
holders, this principle is taken up as number three. Participation has strong roots in the
development discourse and it is not always so clear what element human rights add, especially
since the human rights community is known to be run by an elite group of specialised experts
in many societies. Empowerment is the principle that has the weakest link to the legal human
rights framework, and is therefore dealt with last.
Empowerment, which often is seen as a core element of human rights-based approaches to
development, is not mentioned per se in the list of principles in the Common Understanding.
Instead, empowerment is mentioned as part of “other elements of good programming
practices that are also essential under a human rights-based approach”. Point three out of 13
states that “strategies are empowering, not disempowering.”709 Perhaps this indicates that
empowerment is not seen as a legal human rights principle but rather as ‘good development
practice’. This is quite natural when one understands the historic background of the concept
and how it emerged in the ‘grassroots development discourse’ in the 1980s710 – long before it
became popular within human rights discourse. (After all, there is no ‘right to
empowerment’.)
The Common Understanding gives a short explanation of the principles it raises (that are not
the same as the five I will review). The way human rights principles are explained in the
Common Understanding is strongly linked with the international human rights regime. It is,
for example, explained under ‘accountability and rule of law’ that states and other duty-
bearers are answerable for the observance of human rights. They have to comply with legal
norms and standards, and when they fail to do so, rights-holders can institute proceedings for
redress before a competent court or other adjudicator.711 This shows that the Common
Approach”, in Bård A. Andreassen & Stephen P. Marks (eds) Development as a Human Right: Legal, Political,
and Economic Dimensions (Cambridge: Harvard University Press, 2006), 36-56, at 40-41; Amnesty International
et al, “Human Rights-Based Approaches and European Union Development Aid Policies”, 2008. Available at
http://www.ihrnetwork.org/uploads/files/10.pdf, visited 14 May 2012; Equal in Rights, “What is the Human
Rights-Based Approach to Development?”. Available at http://www.equalinrights.org/human-rights-based-
development-hrbd/, visited 14 May 2012. The order in which these references list the principles is not consistent.
709
Common Understanding, supra note 50.
710
Black, Development in Theory and Practice, supra note 542, at 48.
711
Common Understanding, supra note 50.
108
Understanding focuses on the judicial aspect of accountability, which is only one aspect of the
broad concept accountability, as we will see in the next sections. The problem that the human
rights-based approaches are associated with loosely defined procedural principles, for
example raised by Russell,712 arises when different UN agencies produce their own
interpretations of the Common Understanding. Among UN agencies there is a very varied
practice concerning human rights-based programming, despite the Common Understanding.
The limits between what is ‘good development practice’ and what is human rights-based
practice is often blurred, to say the least, and, moreover, we should keep in mind that human
rights-based approaches seek to strengthen existing good development practice, rather than
replacing them. Darrow and Tomas make a distinction between ‘good development
principles’, using instrumental or utilitarian motivations, and normatively-based approaches
driven by the conviction that human rights are ends in themselves and therefore they must be
given explicit consideration in development work.713 I will refer to this distinction and test
whether it holds true under closer scrutiny.
2.4.3 Express linkage to human rights norms and standards: Using human rights law
as a framework for analysis
The whole rationale behind the Common Understanding can be seen in light of this principle:
Development cooperation should contribute to the realisation of human rights; human rights
standards and principles guide all phases of programming; human rights determine the
relationship between rights-holders and duty-bearers, i.e., there is express linkage to the
normative human rights system. The questions that need to be answered include: who are the
duty-bearers at different levels and what are their responsibilities in regard to a specific
problem? Are these duty-bearers also rights-bearers, i.e., do they rely on others performing
their duties in order to be able to deliver their own?714
According to Jonsson, programming is first and foremost assisted by recognising that human
rights standards determine the development outcomes while human rights principles define
the conditions for an acceptable development process.715 This means that ‘the end does not
justify the means’,716 i.e., there must be respect for the do no harm principle. In the Common
Understanding it is made clear that human rights-based programmes should monitor and
evaluate both outcomes and processes guided by human rights standards and principles. It is
also important that assessment and analysis is directed towards identifying a pattern of rights
and obligations. These elements are said to be necessary, specific, and unique to a human
rights-based approach.717
From a practical level, it can, however, be argued that human rights standards are not precise
enough to concretely inform this aspect of development programming.718 (The Common
Understanding, however, does not only refer to standards and principles but also
712
Anna F. S. Russell, “International Organizations and Human Rights: Realizing, Resisting or Repackaging the
Right to Water?” 9 Journal of Human Rights (2010) 1-23.
713
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 486.
714
HREA, “Guide for Applying Indicators”, supra note 707, at 19.
715
Urban Jonsson, “A Human Rights-Based Approach to Programming”, in P. Gready & J. Ensor (eds),
Reinventing Development? Translating Rights-Based Approaches from Theory into Practice (London: Zed
Books, 2005) 47-62, at 52.
716
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 496.
717
Common Understanding, supra note 50.
718
Jonsson, “A Human Rights-Based Approach to Programming”, supra note 715, at 52.
109
recommendations by treaty bodies: “Programming is informed by the recommendations of
international human rights bodies and mechanisms”, and they can be very concrete.)
Before deciding what measures are needed in order to reach a certain development outcome
there needs to be careful assessment, analysis and planning. There is still no clear answer
among UN agencies how to integrate a human rights perspective when conducting assessment
and analysis at a country level. Some preliminary attempts have been made and I will review
some of them here. According to the “Guide for Applying Indicators within UN Human
Rights-Based Programming” step one is to understand the human rights situation at the
country level. This is carried out through a review of international human rights norms and
standards, aiming at identifying areas of progress towards realization of human rights, as well
as areas where rights may be violated. As part of step one, a preliminary assessment of
exclusion and vulnerability is carried out. Here human rights-based indicators, which are
disaggregated in order to identify excluded and vulnerable groups, as well as those facing
discrimination, play a key role. Indicators for understanding the human rights situation in a
specific country include country ratification of international human rights treaties; status of
state reports submitted to UN bodies; other reports and experts’ judgments data; surveys on
human rights awareness; analysis of percentage of budget spent on human rights activities.719
As we can see this kind of analysis is on a very general level and relies on secondary data
from expert sources. A risk is that practitioners get ‘stuck’ analyzing legal and policy contexts
without connecting this information and analysis to input from communities – or even the
policy work carried out by the national government itself.720 This is an example of the
shortcomings of top-down approaches.
A human rights-based situation analysis may reveal “capacity gaps in legislation, institutions,
policies and voice”,721 (‘voice’ equals the level of opportunity among actors to participate and
articulate their opinions). To address the capacity gaps, national laws may need to be brought
into compliance with treaty obligations. Institutions may need to be strengthened, inter alia,
through improving governance and providing people with effective remedies when their rights
are violated. In addition, discrimination may be combated through policy reforms.722 These
are some of the substantive implications of a human rights-based approach that have
implications for both the process and the outcome.
The Office of the High Commissioner for Human Rights has set out a human rights approach
for the Millennium Development Goals in a publication from 2008. The most concrete
suggestions it makes is that human rights are prioritised by making policy choices and
resource-allocation decisions within a human rights framework,723 i.e., the human rights
framework is used in situation analysis to assist in policy choices. This is based on the
argument that international human rights law provides a framework for assessing the
reasonableness of policy choices and also that international human rights law pre-dates the
MDGs, which means recipient states as well as donor states have existing legal obligations
under human rights treaties. The questions that need to be asked include: Is the policy (related
to the realisation of a MDG target, in this case) resulting in human rights violations? Is the
policy adequately directed towards realizing human rights and ensuring equality, including
gender equality? Are there adequate resources available for implementation? Is there risk of
719
HREA, “Guide for Applying Indicators”, supra note 707, at 16-17.
720
Ibid., at 18.
721
OHCHR, “Frequently Asked Questions”, supra note 81, at 27.
722
Ibid., at 27.
723
Ibid., at 7.
110
decline in the realisation of rights, contravening the principle of non-retrogression?724 Policies
and programmes intended to realise MDGs have the potential to violate human rights, and
therefore human rights impact assessment is important in order to respect the ‘do no harm’
principle.725
UNICEF is perhaps the agency that has made the greatest effort to supply human rights-based
tools for all phases of the programming cycle, but in these tools there is no express linkage to
human rights law as such. The FAO uses a similar approach when conducting a right to food
assessment, but with slightly stronger connections to human rights law. The FAO claims that
only when the factors that hinder individuals to realise their right to food are known can a
targeted right to food strategy be implemented. So called causality analysis will reveal to what
extent, and why, the right to food is either being violated or at risk of being violated, as well
as the major causes of these violations and the key actors involved. The aim is that the legal,
policy and institutional framework must respond to the causes of malnutrition.726 Role
analysis not only identifies duty-bearers in relation to the realisation of a certain human right,
but also their specific corresponding obligations and responsibilities. When there is a list of
obligations and responsibilities for different groups of duty-bearers, it is necessary to
investigate whether or not the obligations are being met.727
The FAO points out that in a human rights approach the primary concern is with ‘what ought
to be’. Only analysing ‘what is’ and ‘why’ is by itself not sufficient. It is important to focus
on the aim, rather than the problem and subsequently the conditions that need to be present at
different levels to achieve good nutrition. Basic conditions should be equitable access to
resources, transparent leadership, participatory policy formulation, and discrimination-free
control of resources.728
There is limited information available about the role of human rights law in programming in
general and in situation analysis in particular. There are many technicalities surrounding
situation analysis and the purpose here is not to give a full overview of all details. The main
point I want to make is that the questions asked in human rights-based situation analysis are
different since there is, or should be, express linkage to human rights norms and standards.
The focus should be on the accountability aspect of human rights/development failures: Who
has a duty? Who has a right? Why is this duty not executed? Why is the right not
claimed/realised? What conditions need to be present in order for the duty-bearer to execute
his obligations and responsibilities and the rights-holder to claim and enjoy his rights? When
these questions are raised in situation analysis they do add a new perspective to ‘good
development programming’.
724
Norms already adopted should not be removed at a later date, i.e., states should not go backwards in the
standards of protection of human rights ensured to individuals.
725
Office of the High Commissioner for Human Rights, Claiming the Millennium Development Goals: A Human
Rights Approach (United Nations: New York and Geneva, 2008) at 12-13. Interestingly, none of the national
MDG reports reviewed for a study by the Highlevel taskforce on the Right to Development made any reference
to individual countries’ commitments under international human rights treaties or conventions, despite the fact
that the national reports considered were of countries that were all signatories and parties to the several
international covenants. This indicates that there is no human rights approach to the MDGs outside of the
OHCHR report. See High-level task force on implementation of the right to development, “The Right to
Development and practical strategies for the implementation of the Millennium Development Goals, particularly
Goal 8”, adopted 2 November 2005, UN doc. E/CN.4/2005/WG.18/TF/CRP.1, para. 20.
726
Food and Agriculture Organization of the United Nations, Guide to Conducting a Right to Food Assessment
(Rome: FAO, 2009) at 20-21.
727
FAO, Methods to Monitor, supra note 697, at 40-41.
728
Ibid., at 61.
111
2.4.4 Equality and non-discrimination
The equality and non-discrimination discourse
Before examining human rights discourse related to equality and non-discrimination, it is
interesting to raise another related term, ‘equity’, mainly used in development discourse.
In the World Development Report 2006: Equity and Development the World Bank highlights
inequality of opportunity as a “waste of human potential” and “missed development
opportunities”. The report observes that all over the world there is a persistent pattern of
individuals and groups facing highly unequal opportunities to better their situation
economically and socially. There are systematic differences in opportunities for individuals
and groups who differ in skin colour, caste, gender, or place of residence. Such inequalities
are often reproduced over time and affect welfare, human development, and also economic
growth.729 In human rights discourse, this would be called indirect discrimination if it could
be shown that a provision, criterion or practice puts “persons having a status or a
characteristic associated with one or more prohibited grounds” for discrimination “at a
particular disadvantage compared with other persons”.730
The World Development report does not offer a definition of ‘equity’, nor does it explain how
it relates to equality and direct or indirect discrimination, but it does make clear that equity
relates to two basic principles: Equal opportunity and avoidance of absolute deprivation. The
second principle reflects the idea that the road from opportunity to outcome may be anything
but easy, even if the equal opportunity principle is upheld. Therefore, society may decide to
intervene to protect its ‘neediest members’.731 These two principles are part of human rights
thinking as well. Equity and equality may be part of different discourses but they have
considerable substantive overlap.732
The rights to equality and non-discrimination have a strong foundation in international human
rights law,733 and have been reaffirmed in declarations and codes of conduct developed by
humanitarian agencies.734 In 2008, a group of human rights and equality experts adopted 27
principles of equality735 to give guidance on complex and controversial issues. This
declaration is not legally binding in any way, but reflects international trends in the area of
equality law and human rights law736 and is therefore referred to here when trying to pinpoint
what is characteristic of equality thinking in human rights discourse.
The right to equality is defined as “the right of all human beings to be equal in dignity, to be
treated with respect and consideration and to participate on an equal basis with others in any
area of economic, social, political, cultural or civil life. All human beings are equal before the
law and have the right to equal protection and benefit of the law.” The Declaration on
729
The World Bank, World Development Report 2006: Equity and Development (Washington: The World Bank,
2006) at 27.
730
Declaration of Principles on Equality, Principle 5, 2008. Available at http://www.equalrightstrust.org/
endorse/index.htm, last visited 5 January 2012.
731
The World Bank, World Development Report 2006, supra note 729, at 18-19.
732
Presentation by Dr Dimitrina Petrova, “International Trends in the Area of Equality”, Helsinki, 6 October
2011.
733
For instance in the International Covenant on Economic, Social and Cultural Rights of 1966, arts. 2(2) and 3,
and the International Covenant on Civil and Political Rights of 1966, arts. 2(1), 3, 4(1) and 26.
734
See e.g. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in
Disaster Relief, 1995. Available at http://www.ifrc.org/Docs/idrl/I259EN.pdf, visited 14 May 2012.
735
Declaration of Principles on Equality, 2008, supra note 730.
736
Petrova, “International Trends in the Area of Equality”, supra note 732.
112
Principles of Equality goes on to affirm that “Equal treatment, as an aspect of equality, is not
equivalent to identical treatment.” It is necessary to “treat people differently according to their
different circumstances”, and moreover, “to be effective, the right to equality requires positive
action.”737 There is rich case law both on international and national levels to support the claim
that positive action is required to fulfil the right to equality, but that is beyond the scope of
this chapter. What can be noted is that already in 1989 the Human Rights Committee pointed
out that the principle of equality sometimes requires States parties to take affirmative action in
order to diminish or eliminate conditions which cause or help to perpetuate discrimination
prohibited by the Covenant on Civil and Political Rights.738
Moreover, the Committee on ESCR has made clear that “in addition to refraining from
discriminatory actions, States parties should take concrete, deliberate, and targeted measures
to ensure that discrimination in the exercise of Covenant rights is eliminated,”739 i.e., the
Committee calls for positive action on behalf of the duty-bearers. Legislation is one measure
to address discrimination but governments also need to ensure that policies, plans, and
strategies are in place and implemented in order to address both formal and substantive
discrimination by public and private actors in the area of the Covenant rights.740 The
heightened attention given to positive action reflects the thinking that equality of opportunity
is not enough; in order to have equal capabilities or possibilities to participate in economic,
social, political, cultural or civil life, certain outcomes such as education, health etc. of
disadvantaged groups also need to improve.741
For development policy and practice, discrimination in the area of economic, social, and
cultural rights is a huge challenge. The Committee on ESCR reiterates that Article 2(2) of the
ICESCR requires States parties to guarantee non-discrimination in the exercise of each of the
economic, social and cultural rights enshrined in the Covenant. Discrimination constitutes any
“distinction, exclusion, restriction or preference or other differential treatment that is directly
or indirectly based on the prohibited grounds of discrimination and which has the intention or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of Covenant rights.”742 The list of prohibited grounds of discrimination has been expanded
over time and the one given in the Declaration of Principles on Equality includes, inter alia,
pregnancy and economic status.743 The Declaration also clarifies the notions of direct and
indirect discrimination, both of which have been part of the equality discourse for a long time.
It is direct discrimination when a person or group of persons is treated less favourably than a
person or group of persons would be treated in a comparable situation, and this is related to
one or more prohibited grounds.744 Most non-discrimination law regimes also include a
prohibition of indirect discrimination, a concept which is defined differently in different
jurisdictions but usually says that discrimination on any of the discrimination grounds may
take place when a practice or rule has a detrimental effect on persons meant to be protected
737
Declaration of Principles on Equality, 2008, supra note 730, principle 2 and 3.
738
Human Rights Committee, General Comment No. 18 (1989), para. 10. Adopted at the thirty-seventh session.
Emphasis added.
739
General Comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, Committee on
Economic, Social and Cultural Rights, Report of the Forty-second session, UN doc. E/C.12/GC/2, 10 June 2009,
para. 36.
740
Ibid., para. 38.
741
Petrova, “International Trends in the Area of Equality”, supra note 732.
742
General Comment No. 20 (2009), supra note 739, para. 7.
743
Declaration of Principles on Equality, 2008, supra note 730, principle 5.
744
Ibid.
113
against discrimination.745 Schiek finds that the arguments raised in indirect discrimination
claims potentially expose structural disadvantage, which may lead to policy changes, but
judicial procedures cannot necessarily repair disadvantage.746 This is an area outside the scope
of this chapter. What is interesting from a development perspective is whether human rights
law on equality and non-discrimination can be used to improve efforts to alleviate poverty.
The Declaration of Principles on Equality calls for measures against poverty in Principle 14:
“As poverty may be both a cause and a consequence of discrimination, measures to alleviate
poverty should be coordinated with measures to combat discrimination, in the pursuit of full
and effective equality.” This is a controversial issue, and poverty as a ground for
discrimination has not yet been accepted in any statement within the human rights framework.
The Principles and Guidelines for a Human Rights Approach to Poverty Reduction instead
highlights that poor people are often victims of discrimination on grounds such as birth,
property, national and social origin, race, colour, gender, and religion.747
It is clear that obligations in relation to the rights to equality and non-discrimination have
implications for how development policies are implemented. For instance, as the poor are the
most disadvantaged and marginalised groups in every society, it is crucial that a poverty
reduction strategy starts by addressing their special needs as well as their right not to be
discriminated against.748
When using equality and non-discrimination as an important ‘lens’ for development efforts, it
is essential to be aware how laws, policies, or administrative practices may create or combat
structural discrimination. In human rights-based approaches it is highlighted that a great deal
of poverty originates from political, social, cultural, or institutional discriminatory practices,
ranging from the international to the local levels.749 In order to measure the impact of
different policies, it is important that disaggregated data by prohibited grounds of
discrimination such as sex, disability, ethnicity, religion, language, geographic location and so
forth, is collected and analysed.750 However, this much called for data often does not exist,
thereby not capturing the situation of the poorest and most marginalised people, including
indigenous and minority groups, in official statistics and household and demographic surveys.
The Office of the High Commissioner for Human Rights points out in a report that “available
745
Dagmar Schiek, “Indirect Discrimination”, in D. Schiek, L. Waddington & M. Bell (eds.), Cases, Materials
and text on National, Supranational and International Non-Discrimination Law (Oxford: Hart Publishing, 2007)
323-475, at 323.
746
Ibid., at 475.
747
OHCHR, “Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra
note 243, at 9.
748
Ibid., at 10.
749
Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note 708, at 50.
750
OHCHR, “Frequently Asked Questions”, supra note 81, at 24. The importance of disaggregating data cannot
be overemphasized, according to the High-level task force on implementation of the right to development, see
the report “The Right to Development and practical strategies for the implementation of the Millennium
Development Goals, particularly Goal 8”, adopted 2 November 2005, UN doc. E/CN.4/2005/WG.18/TF/CRP.1,
para. 22. On the issue of indicators, see Claire Naval, Sylvie Walter & Raul Suarez Miguel (eds), “Measuring
Human Rights and Democratic Governance”, 9 OECD Journal on Development (2008), at 165. Available at
http://www.paris21.org/sites/default/files/Metagora-final_EN.pdf, visited 20 September; Siobhán McInerney-
Lankford and Hans-Otto Sano, Human Rights Indicators in Development: An Introduction (Washington, D.C.:
The World Bank, 2010).
114
data mostly remain at too aggregated a level and indicators frequently measure only “average”
progress and hence hide patterns of discrimination, inequality and disparities in outcomes.”751
Although there are many legal details around equality and non-discrimination, both in
international human rights law and national equality legislation, this particular human rights
principle is quite straightforward, at least in theory. What kind of operational implications it
has for development efforts can of course be debated, but there seems to be some consensus
that the principle implies that priority should be directed towards those suffering
discrimination and disadvantage in any given context, especially the poorest of the poor and
groups suffering multiple discrimination, such as rural women of an ethnic minority.752 The
Nepal-Finland cooperation project called Rural Village Water Resources Management can be
mentioned as an example. Non-discrimination is here seen as requiring a focus on the most
marginalised and vulnerable to exclusion and discrimination, inter alia, women, children,
inhabitants of (remote) rural and deprived urban areas, and indigenous groups. In order to
address the discrimination that these groups face in the area of water management, “positive
targeted measures may have to be adopted”.753
Women as a group often suffer discrimination and are a popular ‘target group’ in development
efforts. Some argue that a rights approach helps avoid the pitfalls that are attached to an
abstract and often depoliticised notions of ‘gender’, which have made ‘women’ as a category
visible but not helped in making equality real. Human rights approaches keep the end output –
guaranteed rights for all – in constant focus.754 It is here that human rights discourse may add
value: in redirecting focus on non-discrimination as the basis on which to demand equality
and justice for women as rights-holders.
Surprisingly, a review of an overview of five of the most commonly applied gender analysis
frameworks and tools reveals that discrimination is not a common focus of gender analysis.
Issues such as how the planned activity impacts on men’s and women’s control and access
over resources, time, and other socio-cultural factors, including changes in social roles and
status, are analysed. It is only in the Women’s Empowerment Framework by Sara Hlupekile
Longwe where equal access to the factors of production by removing discriminatory
provisions in the laws is highlighted.755
751
Office of the High Commissioner of Human Rights, “Human Rights and the Millennium Development Goals:
A review of Country Strategies and Reporting”, New York: 2010, at 28. Available at http://www.ohchr.org/
Documents/ Publications/HRAndMDGsInPractice.pdf, visited 18 January 2012.
752
OHCHR, “Frequently Asked Questions”, supra note 81, at 24. See also Twomey, “Human Rights-Based
Approaches to Development”, supra note 41, at 54; Hansen and Sano, “The Implications and Value Added of a
Rights-Based Approach”, supra note 708, at 50. Note that the Common Understanding is not linking non-
discrimination to focus on the most vulnerable.
753
“Questionnaire by Independent Expert on the issue of human rights obligations related to access to safe
drinking water and sanitation”, Contribution from the Rural Village Water Resources Management Project,
Nepal – Finland, Geneva, 2010, at 7. Available at http://www2.ohchr.org/english/issues/water/iexpert/docs/
questionnaires2010/Nepal_Finland_Cooperation_Rural_village_water_resources_management.pdf, visited 14
May 2012.
754
Joanna Kerr, “From ‘Opposing’ to ‘Proposing’: Finding Proactive Global Strategies for Feminist Futures”, in
Joanna Kerr et al (eds), The Future of Women’s Rights (London: Zed Books, 2004) 14-37, at 25.
755
Gender Analysis Framework, available at http://www.devtechsys.com/gender_integration_workshop/
resources/review_of_gender_analysis_frameworks.pdf, visited 20 October 2011.
115
Non-discrimination in ‘good development’ and human rights approaches: Vulnerable to
what?
In development and humanitarian operations, the principle of non-discrimination is linked to
the impartiality requirement whereby humanitarian operations cannot be biased in favour of a
particular religious, political, social or other group.756 Therefore, this principle is visible in
identification and selection of ‘beneficiaries’, in aid targeting. Often equality and non-
discrimination are equated with providing services for ‘vulnerable groups’ such as women
and children.757 In order to establish the needs among the target population, a needs-
assessment is usually carried out. This exercise is usually carried out by experts. As an
example of the instructions these experts follow the WFP’s guidelines on Comprehensive
Food Security & Vulnerability Analysis can be mentioned. This tool is “designed to
understand and describe the profiles of food-insecure and vulnerable households”. In this
context, vulnerability is not linked to the possible discrimination experienced by the
individual or group, but is instead linked to other criteria, such as income. “Looking at
household expenditure and income, the analyst is able to determine which are the most
vulnerable households and what risks (drought, flood, pest, insecurity) will affect them the
most.”758 Naturally, other assets than income are also taken into account, and this information
is collected separately for men and women.759
The FAO uses a vulnerability analysis that aims at identifying people at risk of becoming food
insecure or malnourished. Vulnerability is here about exposure to one or more risk factors and
the capacity to withstand the effects of a specific risk or risks. Vulnerable or highly vulnerable
are those people or households that have little or no capacity to safeguard their access to food,
even when confronted with a minimal risk factor.760 In the vulnerability assessment,
discrimination experienced by people is not a factor that is analysed. Nevertheless, the FAO
claims that targeting of groups that are vulnerable to food insecurity is essential in rights-
focused approaches: “these approaches involve establishing transparent and non-
discriminatory eligibility criteria.” The purpose of the vulnerability analysis is to ensure that
“all those in need are included in actions to reduce food insecurity and vulnerability”.761 In
this case, vulnerability assessment is about identifying needs and making sure there is no
discrimination in the targeting process – but less about using discrimination and
marginalization as a lens for analysis. Focus is not on those who are most marginalised or
vulnerable to discrimination and exclusion, but on those who are vulnerable to food insecurity
or malnourishment. These examples show how differently ‘vulnerability’ can be defined in
development work.
The point here is that when the human rights principle of non-discrimination and equality is
used as a lens for analysis this can potentially add something to the kind of analysis and
assessment usually carried out in good development practice. The focus should be more on
finding out who is marginalised and vulnerable to exclusion and discrimination than who is
vulnerable to food shortages, worsened by circumstances such as droughts. The answer might
be that the same individuals and groups are experiencing both discrimination and food
756
Lorenzo Cotula and Margaret Vidar, The Right to Adequate Food in Emergencies (Rome: FAO Legislative
Study 77, 2003) at 49.
757
See Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 17.
758
World Food Programme, “Comprehensive Food Security & Vulnerability Analysis Guidelines”, January
2009, at 31. Available at http://www.wfp.org/content/comprehensive-food-security-and-vulnerability-analysis-
cfsva-guidelines-first-edition, visited 14 May 2012.
759
Ibid., at 34.
760
FAO, Methods to Monitor, supra note 697, at 63.
761
Ibid., at 63.
116
insecurity, but the question is different. Therefore, when the question as to why is there
discrimination and what can be done to address it is added to the analysis and the affected
people are actively involved in the inquiry, this can potentially be the first step to change the
situation (agency) in addition to mitigating hunger through providing for needs for a period of
time.
Concluding remarks on non-discrimination
The usual way of working with the principle of non-discrimination in human rights
approaches to development is to focus on the most vulnerable individuals and groups.
However, a short analysis of how vulnerability is defined in work that identifies itself as
human rights-based, reveals that vulnerability assessment is very much like that in ‘good
development practice’, i.e., about identifying needs and making sure there is no
discrimination in the targeting process. The possible added value that a ‘human rights lens’
can bring is to focus on identifying the individuals and groups who are vulnerable to
discrimination and exclusion. Disaggregated data is therefore of high importance – but seldom
exists in reality. For example, human rights discourse may in some cases add value through
redirecting focus on non-discrimination as the basis on which to demand equality and justice
for women as rights-holders. Focusing on women as rights-holders naturally also leads to an
analysis of the lack of equality.
2.4.5 Accountability
Introduction and background to the accountability discourse
McInerney-Lankford points out that it is problematic that there are two parallel accountability
frameworks, that of development cooperation, such as the Paris Declaration on Aid
Effectiveness (2005), and that of the legal human rights framework. The same countries that
are held mutually accountable as donors and partners by the Paris Declaration, are also
accountable for human rights that are “directly relevant to, and potentially impacted by, [aid]
harmonization efforts.”762 Another challenge is that the accountability propounded through
development frameworks is not of equal value as the legal accountability under human rights
law. Accountability through development frameworks is built on principles, political
commitments, and policy frameworks rather than binding legal obligations under public
international law.763 It is the value of these binding legal obligations that makes the human
rights framework so attractive from an accountability perspective. Lack of accountability for
human rights obligations as well as for development policy and practice is a challenge in most
countries of the world, and more accountability mechanisms and processes are seen as the
solution.
Struggles by the poor to hold the powerful to account is a key issue behind many conflicts.764
“In most countries around the world, citizens know little about how much money their
government has at its disposal, where that money comes from, and how it is managed and
accounted for.” What further diminishes the sense of accountability to citizens in Sub-Saharan
762
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 74-75. Quote from page 75.
763
Ibid., at 74-75.
764
Peter Newell and Joanna Wheeler, “Rights, Resources and the Politics of Accountability: An Introduction”, in
Newell & Wheeler (eds), Rights, Resources and the Politics of Accountability (England: Institute of
Development Studies, 2006) 1-36, at 1.
117
Africa for public revenues is that a relatively large proportion of government revenues come
from international aid and the export of primary resources (rather than tax revenues).765
In order to address these kinds of accountability gaps, specific reforms are called for whereby
officials must explain, i.e., ‘account’ for their actions (actions should be ‘transparent’); so that
officials ‘take responsibility’ for their actions; so that voters hold elected officials to account
through elections; and so on.766 We can say that accountability generally refers to holding
actors responsible for their actions.767 As we will see below, there are many ways to do this.
The concept ‘accountability’ has assumed a central place in contemporary development
discourse, partly due to increasing attention to the idea of ‘good governance’.768 The logic to
support an institutional environment for ‘good governance’ is that certain conditions underpin
the ability of governments to be accountable (supply-side conditions) and the ability of
citizens and civil society to hold governments accountable (demand-side conditions).769
Therefore, traditionally both human rights and development discourse have called for
accessible, transparent and effective accountability mechanisms at all levels.770 With regard to
operational aspects of support to good governance in aid, donors tend to emphasise good
governance as primarily linked to institutional development and to reform of administrative
procedures. This means that the executive branch of government should be accountable for its
actions, the bureaucracy should be of high quality, the legal framework should be appropriate
to the circumstances, policy-making should be open and transparent so that citizens can have
input in the decision-making process, and civil society should be strong so that it can
participate in public affairs.771
Newell and Wheeler are of the opinion that the association between accountability and good
governance, in the technical way described above, has meant that “the politics of
accountability has been reduced to questions of state reform.” In their book, they show that
accountability cannot be achieved through institutional reform alone, although it naturally is a
crucial aspect of improved accountability.772 They claim that when accountability is framed as
a problem of institutional engineering, legal reform, and better accounting, what often follows
is a denial of the political and historical context of accountabilities by which people make
sense of rights and obligations.773 The empirical research for this thesis supports the fact that
matters of institutional reform are far from the day-to-day reality when demanding
accountability from power holders in struggles over resources and services.
765
Mary McNeil and Carmen Malena, “Social Accountability in Africa: An Introduction”, in McNeil & Malena
(eds), Demanding Good Governance (Washington: The World Bank: 2010) 1-22, at 7.
766
Rob Jenkins and Anne Marie Goetz, “Accounts and Accountability: Theoretical Implications of the Right-to-
information Movement in India”, 20 Third World Quarterly (1999) 603-622, at 607.
767
Peter Newell, “Taking Accountability into Account: The Debate So Far”, in Peter Newell and Joanna
Wheeler (eds), Rights, Resources and the Politics of Accountability (England: Institute of Development Studies,
2006) 37-58, at 40.
768
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 1.
769
McNeil and Malena, “Social Accountability in Africa”, supra note 765, at 5.
770
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
771
Hans-Otto Sano, “Good Governance, Accountability and Human Rights” in H-O. Sano & G. Alfredsson
(eds), Human Rights and Good Governance (The Hague: Martinus Nijhoff Publishers, 2002) 123-146, at 131-
132.
772
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 1.
773
Ibid., at 21.
118
Different forms of accountability
In recent years, aid and development agencies have funded a large number of anti-corruption
commissions, auditors-general, human rights machineries, and legislative public accounts
committees. These are state agencies that monitor the arms of the state, and are called
institutions of ‘horizontal accountability’. ‘Vertical’ forms of accountability include both the
individual citizen’s electoral choice and the collective forms of pressure by civil society
organisations.774 Both vertical and horizontal accountability are dimensions of political
accountability. The fact that rulers explain and justify actions to the ruled traditionally
distinguished a democratic society from a tyrannical one. Today, with the growth of
bureaucracies, the lines of political accountability have become increasingly blurred and the
mechanisms of political accountability have grown.775 For example, the Paris Declaration on
Aid Effectiveness underlines the importance of the role of parliaments in scrutinizing budget
and policy proposals. Parliamentary committees provide a further channel for engagements
with parliamentarians in the role of reviewing legislations, budgets and policies.776
Traditionally, financial accountability has been important in development cooperation. This is
a less political form of accountability concerned with inputs, outputs and outcomes,
monitoring expenditure and making sure that the processes are efficient.777 According to the
Paris Declaration, partner countries commit to strengthening public financial management
capacity and taking leadership of the public financial management reform process.778
Another accountability framework that is often supported by donors is legal and
constitutional accountability that is assured by the judiciary. The judiciary is entrusted with
the task to ensure that politicians and officials do not exceed their legal authority.779 From a
human rights perspective, judicial accountability is key. In countries where, for example, the
right to food or related rights such as the right to social security have been incorporated into
the constitution or other national legislation, this gives citizens an opportunity to challenge
legislation and policy through judicial systems.780 In addition, quasi-judicial accountability
mechanisms, including independent bodies established to advance and defend human rights,
such as national human rights institutions and ombudspersons,781 promote accountability for
human rights failure. Moreover, international accountability processes, such as quasi-judicial
processes for reviewing governments’ implementation of ESC rights, including the
Committee on Economic, Social and Cultural Rights and special rapporteurs,782 are important
components of human rights accountability mechanisms. Recently there has also been
developments within private sector accountability that has international relevance, e.g. the so
called Ruggie principles on business and human rights.783
774
Anne Marie Goetz and Rob Jenkins, “Hybrid Forms of Accountability: Citizen Engagement in Institutions of
Public-Sector Oversight in India”, 3 Public Management Review (2001) 363-383, at 364. See also, Larry
Diamond et al, “Introduction”, in Andreas Schedler et al. (eds), The Self-Restraining State: Power and
Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999) 1-9, at 3.
775
Newell, “Taking Accountability into Account”, supra note 767, at 45-46.
776
The Paris Declaration on Aid Effectiveness, 2005. See Ferguson, “Linking Human Rights and Aid
Effectiveness”, supra note 706, at 36.
777
Newell, “Taking Accountability into Account”, supra note 767, at 50.
778
The Paris Declaration on Aid Effectiveness, 2005, at 15.
779
Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 366.
780
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 40.
781
Ibid., at 40-41.
782
Ibid., at 41.
783
Report of the Special Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, John Ruggie, UN doc. A/HRC/17/31, 21 March 2011.
119
Rights-oriented development discourses, in which there can be distrust in the processes of
institutional engineering and judicial processes often support social accountability. This form
of accountability explores citizen action, aimed at over-seeing political authorities, as a way
of redefining the relationship between citizens and their elected representatives.784 Social
accountability is the direct accountability relationships between citizens and the state. In
practical terms, this form of accountability refers to a broad range of actions and mechanisms
(beyond voting) that citizens can use, such as monitoring public budgets, participation in
budget formation, citizen report cards on service delivery, and social audits, to mention a few
examples. In order to enhance social accountability an array of approaches, strategies, and
methods have been used by a wide range of actors including citizens, civil society
organizations, communities, government agencies, parliamentarians, and the media.785 Social
accountability is most often used in service delivery, in efforts to inform citizens and create
channels for them to use information to hold service providers accountable.786 In order for
social accountability to work it requires transparency and right to information, as well as
opportunities to use the information, i.e. participation and redress mechanisms. These can be
formal or informal channels to express dissatisfaction as well as complaint channels within
government agencies, independent redress institutions, redress mechanisms within
development programmes, and courts.787 (I will return to the role of courts in the next
section.)
Social accountability tries to capture voices at the local level. One challenge is the low level
of resources usually available at the local level. This is related to the fact that if the central
government is not meeting its obligations in channelling resources for socioeconomic rights to
the local level (as part of decentralisation) social accountability efforts remain ineffectual
unless they also target the central government. An unexpected benefit of social accountability
mechanisms might be that they create opportunities for actors to have a dialogue regarding the
content and meaning of human rights, and obligations, in their lived realities. This requires
that the agenda is open enough and that there is some awareness of the idea of rights and
duties.
Social accountability as well as other accountability mechanisms in development can be high
jacked by patrimonial systems and local elites to serve their agendas, or they can serve the
agendas of development agencies. When unmasking the agenda behind different approaches
to accountability one can ask questions such as: what is accountability for? (i.e., what broader
political ends does it serve?); who is it for (i.e., who benefits, who formulates those claims?);
how is it practiced? (i.e., through what means and processes?); where is it practiced? (i.e., at
what levels of political decision making?)788 Empirical assessment of which accountability
strategies work, when and for whom789 can contribute to making context-specific
accountability models, promoting stronger position for rights-holders.
784
Newell, “Taking Accountability into Account”, supra note 767, at 47-48.
785
McNeil and Malena, “Social Accountability in Africa”, supra note 765, at 6.
786
World Bank, World Development Report 2004: Making Services Work for Poor People (Washington: The
World Bank, 2004); Presentation by Dena Ringold, “Citizens and Service Delivery: Assessing the Use of Social
Accountability in Human Development”, Helsinki, 5 October 2011.
787
Dena Ringold, Alaka Holla et al, Citizens and Service Delivery: Assessing the Use of Social Accountability
Approaches in the Human Development Sector (Washington, D.C.: The World Bank, 2012).
788
Newell, “Taking Accountability into Account”, supra note 767, at 37-38.
789
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 3.
120
Accountability in human rights approaches to development
In ‘good development programming’ accountability flows from the implementing agency to
the funding agency,790 despite the fact that the Paris Declaration on Aid Effectiveness talks of
‘mutual accountability’.791 The strongest accountability relationship in aid processes is still
that of recipient governments to donors. ‘Mutuality’ tends to be interpreted as meaning that
partner countries prove, to the satisfaction of donors, that they have fulfilled their
commitments.792 (This is not changed by human rights approaches, as we will discuss later in
this chapter.)
What does change through human rights-based approaches is that new lines of accountability
emerge, such as government to target group, through the mobilisation of rights-holders.793
Human rights-based approaches establish the accountability-requirement within a framework
of specific human rights entitlements and corresponding obligations.794 This approach implies
the accountability of those with duties and obligations.795
Accountability is therefore often seen as the ‘lynchpin’ of the human rights framework: it
aims at enabling citizens to claim their rights and ensuring governments and other actors to
implement their responsibilities. Transparency is argued to be essential because without it
people and organisations cannot access information needed to hold power-holders to
account.796 Thereby, we return once again to good governance. On the relationship between
human rights and accountability, Sano observes that human rights can be seen as principles
against which good governance programmes are checked or human rights can enter as specific
measures and laws promoted for enhancing popular participation to promote accountability.797
From both perspectives, the aim of accountability can be seen as enhancing a process of
reviewing the performance of the government and other duty-bearers against their human
rights obligations.798 (New lines of accountability explored in human rights-based approaches
often take the form of institutionalized local monitoring groups.799)
Human rights discourse has traditionally focussed on the legal and judicial aspects of
reviewing the performance of duty-bearers. Darrow and Tomas point out that mechanisms of
redress need not be limited to, but should include, judicial mechanisms.800 The argument has
been that for accountability to be effective, it needs to be demanded801 and have some kind of
recourse or remedy mechanism, including rehabilitation, compensation, punitive sanctions, as
790
For examples of NGOs being accountable to their donors rather to their members, see Hans-Otto Sano,
“Making Rights Work for the Benefit of the Poor and Marginalized: Assessing the Impact of CARE’s Rights-
Based Work in South-Western Uganda”, Danish Institute for Human Rights, 2010, at 6-7; see also J.P. de
Campos Guimarães, “Participatory Approaches to Rural Development and Rural Poverty Alleviation”, Working
Paper, UN Economic and Social Commission for Asia and the Pacific, 2009, at 21. Available at
http://www.unescap.org/pdd/publications/poverty_and_development/participatory_rural.pdf, visited 10 May
2012.
791
“Donors and partners are accountable for development results”, see Paris Declaration on Aid Effectiveness,
2005, paras. 47-50.
792
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 35.
793
See Sano, “Making Rights Work for the Benefit of the Poor”, supra note 790, at 6-7.
794
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
795
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 495.
796
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18.
797
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 133.
798
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18.
799
For example in the work of CARE Uganda, see Sano, “Making Rights Work for the Benefit of the Poor”,
supra note 790, at 9.
800
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 512.
801
OHCHR, Claiming the Millennium Development Goals, supra note 725, at 24.
121
well as prevention of harm through changes in policies and practices or guarantees of non-
repetition.802 It is often underlined that effective enforcement mechanisms and the capacity to
punish is an integral part of accountability. Illegal behaviour calls for legal sanctions;
demonstrated abuses such as corruption or human rights violations, must be punished,
otherwise there is no rule of law and no accountability.803
The human rights framework itself incorporates national, regional, and international judicial
and other accountability mechanisms for reviewing the human rights obligations of
governments. These include UN treaty monitoring bodies and special rapporteurs at the
international level; human rights courts and commissions at the regional level. At the national
level, judiciary and national courts, national human rights commissions and ombudspersons,
administrative monitoring and review processes804 have roles in monitoring of adherence to
human rights.
Broadly speaking, ‘legal human rights-based approaches’805 typically focus on developing
laws, policies, institutions, administrative procedures and practices that can deliver
entitlements, respond to denial and violations and ensure accountability.806 This kind of work
is largely carried out with the support of donors and international agencies. UN agencies seem
to focus on the legal aspects of accountability, as the Common Understanding promotes
judicial mechanisms as a solution when states and other duty-bearers fail to comply with legal
norms in human rights instruments: “aggrieved rights-holders are entitled to institute
proceedings for appropriate redress before a competent court or other adjudicator in
accordance with the rules and procedures provided by law.”807 This is a basic principle in
human rights law, and taking non-compliance with human rights norms seriously in
development programming is naturally welcome (especially if this concerns also
accountability for human rights impact by actions involving donor states). We should,
however, keep in mind that accountability in the context of human rights-based development
approaches has diverse meanings and many approaches by civil society and marginalised
groups apply other methodologies for holding duty-bearers to account, e.g. social
accountability in its various forms. Advocacy and mobilisation campaigns are important
features of rights-based strategies to achieve greater accountability, and sometimes legal
strategies are part of the ‘tool box’, sometimes not. Often social and political mobilisation is
critical for ensuring that court judgments are enforced.808
Authors in favour of legal approaches often point out the value of human rights law offering a
normative baseline mandating non-regression and a principle of ‘do no harm’.809 (‘Do no
harm’ is not mentioned in the Common Understanding, despite its legal approach to
accountability.) The OECD DAC argues that the “international human rights framework can
provide a standard against which to assess aid effectiveness and ensure that changes instituted
in the delivery and management of aid will support, or at least not undermine, the realisation
802
See Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie, UN doc. A/HRC/17/31, 21 March 2011,
para. 25.
803
Anderas Schedler, “Conceptualizing Accountability”, in A. Schedler et al. (eds), The Self-Restraining State:
Power and Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999)13-28, at 16-17.
804
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 18-19; see also OHCHR,
“Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies”, supra note 243, at
17.
805
This is my concept and not that of the authors Darrow and Tomas.
806
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 512.
807
See paragraph describing Accountability and Rule of Law in the Common Understanding, supra note 50.
808
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, at 19.
809
McInerney-Lankford, “Human Rights and Development”, supra note 68, at 71.
122
of human rights”.810 For this to work in practice, it would take strong accountability
mechanisms so that development policy and practice of both donor states, multilateral
agencies, and recipient states is monitored and assessed from a human rights perspective.
Considering that the treaty monitoring mechanisms within the UN system seldom even refer
to development policy and practice811 this would require a considerable modification in
current practices.
‘Do no harm’ should naturally be taken seriously in ‘good development practice’ as well as in
human rights-based approaches. Respecting human rights and preventing harm that causes
lower human rights enjoyment because of development activities can be seen as being part of
duty-bearers’ negative obligations. However, we should not forget accountability for positive
obligations. The process of how rights can be realised is important in the accountability
discussions that focus on the enforceability dimension of accountability. According to Newell
and Wheeler, it is in this context that we encounter the limits of (over)-reliance on rights.812
At the level of development programming, promoting a stronger role for the human rights
legal accountability framework is not necessarily the only or most relevant role that the
human rights framework can play. Instead the act of identifying rights-holders813 (and their
entitlements) and corresponding duty-bearers (and their obligations) is what potentially raises
levels of accountability in the development process. Both positive obligations to protect and
fulfil a specific human right, and negative obligations to abstain from violations are to be
considered.814 But this does not mean that all development failures should be dealt with in
human rights treaty monitoring bodies, for instance. Instead it requires that human rights
impact assessment is applied to all development plans, policies, budgets, and programmes to
determine progress/failures in human rights terms.815 Explicit human rights reference in
development programming is a doorway to increased human rights accountability.
Who is accountable for human rights impact in development?
The question who has duties and obligations is of course relevant. We know that states have a
legal obligation to respect, protect and fulfil human rights and that they are accountable for
human rights implementation of the conventions they have ratified.816 We also know that the
Paris Declaration advocates mutual accountability, i.e., that donors and partners are
accountable for development results. (Paris Declaration also proposes commitments to donors
that they e.g. refrain from requesting the “introduction of performance indicators that are not
consistent with partners’ national development strategies.”817) However, despite the mutual
accountability principle, it is commonly held that aid accountability is one-way,818 and donor
obligations are not often on the agenda.
What sort of accountability for human rights impact can be expected from international
organisations and donor states? It is clear that the nature of political change in weak states in
810
OECD DAC Update, “Human Rights and Aid Effectiveness”, April 2007, at 2. Available at
http://www.oecd.org/dataoecd/15/12/38713028.pdf , last visited 18 January 2012.
811
On the UN treaty monitoring and MDGs see Philip Alston, “Ships Passing in the Night: The Current State of
the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals”, 27
Human Rights Quarterly (2005) 755-829.
812
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 7.
813
Called ‘claim-holders’ by Darrow and Tomas.
814
See Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 511.
815
Twomey, “Human Rights-Based Approaches to Development”, supra note 41, at 54.
816
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 137.
817
Paris Declaration on Aid Effectiveness (2005), para. 45.
818
Ferguson, “Linking Human Rights and Aid Effectiveness”, supra note 706, 42.
123
the South is often heavily influenced by both bilateral donors and by UN development
agencies. This is the case especially in transitional societies where civil society groups have
received new influence, often thanks to support and resources from the international
community. Donors and international agencies view these civil society groups as agents of
democratisation, and they willingly take that role, but often they alone carry the risk of
challenging authoritarian or transitional regimes and power-holders. It is not surprising that
NGOs and local non-state actors raise demands concerning consistency of policy and human
rights accountability of the very organisations and donors who are driving the agenda to
reinforce participation and human rights through the operations of these local actors.819 One
can argue that Western donors and international organisations involved in democratisation,
good governance, and human rights promotion certainly share a responsibility with national
states both for respecting human rights themselves and for contributing positively to human
rights fulfilment.820 Among the development community there is, however, not much
awareness or conscious effort to take such responsibility seriously.
In human rights law, the question of extraterritorial obligations has gained more attention
recently. These obligations pertain to acts of a state which have human rights effects outside
the territorial jurisdiction of that state. In this context it is important to make a distinction
between an obligation to cooperate internationally for development and an obligation to
provide development assistance.821 Many donors have traditionally been cautious in the right
to development debate, specifically for the reason that it has been interpreted by some as
creating a right to receive international assistance.822
There is a general unwillingness among donors to take on international obligations, and
Cornwall and Nyamu-Musembi suggest that international development agencies use the
language of rights-based approaches to development without intending to bear the entirety of
consequences that flow from it. They see that the lack of possibility of accountability
mechanisms in the international development assistance structure is undermining the whole
idea of aid recipients having been transformed from ‘passive beneficiaries’ to ‘rights-
holders’.823 This is not only a legal question, but a practical problem that undermines the
credibility of human rights-based approaches to development assistance.
Struggle for accountability
Authors who view struggles over rights and accountability in the context of wider social and
political transformation (compared to those concerned with narrow ‘legal human rights
approaches’) put accountability into a complex relationship between rights, resources and
accountability, i.e., the relationship between the state and its citizens.824 Newell and Wheeler
remind us that accountability is not an end in itself. Instead, it is at best a means to achieving a
wider set of goals that involves deeper social and political change. This point is often
forgotten in technocratic and target-driven approaches to accountability.825 For example,
struggles over resources and efforts to realise rights such as housing or water concerns the
relationship between rights and accountability. Rights become tools of accountability, where
819
Sano, “Good Governance, Accountability and Human Rights”, supra note 771, at 140.
820
Ibid., at 141.
821
Wouter Vandenhole, “EU and Development: Extraterritorial Obligations under the International Covenant on
Economic, Social and Cultural Rights”, in Salomon, Tostensen and Vandenhole (eds), Casting the Net Wider:
Human Rights, Development and New Duty-Bearers (Antwerp: Intersentia, 2007) 85-106, at 85-86.
822
See Piron, “Learning from the UK”, supra note 692, at 15.
823
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1433.
824
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 4.
825
Ibid., at 13.
124
marginalised groups use rights claims around key resources in a struggle for increased
accountability from state, private, and civil society actors.826
Accountability is not just about answerability as to results, actions, and non-actions but also
about delivering enforceability of rights. Rights, or rather the lack of their practical
implementation, are at the heart of mobilisations for accountability.827 The aim of social
movements that struggle for basic rights is often to increase the level of responsiveness and
accountability of public institutions.828 Proposals for change can be made, but if they are met
with a blank wall of unresponsiveness by duty-bearers the lives of rights-holders will not
improve.829 The responsiveness and accountability relationship is usually seen to function
when bureaucracies involved in service delivery are responsive to citizen needs, and
accountable to elected officials.830 In these struggles, accountability is not apolitical and the
judicial proceedings are not necessarily part of the process.
In addition to this, judicial activism is an interesting phenomenon. In India Public Interest
Litigation (PIL) is one example that is very relevant when exploring the role of rights and
accountability in development related claims. In a number of decisions by the Supreme Court
of India, it was established that the judiciary is morally required and constitutionally
mandated to increase its responsiveness to citizen requests for investigative action concerning
specific government agencies, including service-delivery ministries. In the form of PIL,
citizens enter the horizontal process of in-depth monitoring of government, and as such it
represents an interesting case of hybrid accountability between the vertical and horizontal
axes. Individual citizens and activists groups become part of an official fact-finding process.
In India, PIL has legitimized the notion of direct citizen engagement with issues of executive
oversight. PIL has also attracted a lot of interest by social movements in adopting legal
processes, showing that it is possible for citizen-litigants to enter into legal-constitutional
accountability institutions, becoming active demanders of answerability in a forum that
carries the weight of enforceability. Most citizen-initiated approaches aim to achieve precisely
this combination of answers and sanctions.831As constitutional regimes vary widely from one
country to another, the Indian experience can naturally not be generalised. Moreover, the
experiences from India are not only positive. Litigation has often times been time consuming,
costly, relatively ineffective as compared to traditional mobilisation strategies,832 and there is
risk of depoliticising issues in the legal arena.
It is also important to be aware that, even in countries where there is judicial responsiveness
to social claims and the courts are able to influence the formal political process, the successful
826
Newell and Wheeler, “Rights, Resources and the Politics of Accountability”, supra note 764, at 5-6.
827
Ibid., at 7.
828
For a case study see Celestine Nyamu-Musembi, “From Protest to Proactive Action: Building Institutional
Accountability through Struggles for the Right to Housing”, in Peter Newell and Joanna Wheeler (eds), Rights,
Resources and the Politics of Accountability (England: Institute of Development Studies, 2006) 122-143.
829
Jo Rowlands, “The Right to be Heard: An Overview”, in Rowlands (ed.), Speaking Out: Case Studies on How
Poor People Influence Decision-Making (Oxfam GB, 2009) 1-10, at 6.
830
Nyamu-Musembi, “From Protest to Proactive Action”, supra note 828, at 136. On the other hand,
bureaucrats, auditors and judges are kept at a distance from citizens and politicians precisely to guard against too
much responsiveness to particular interests and influential social groups. However, in the name of ‘neutrality’
there are often policies and mechanisms in place that restrict public scrutiny and help to hide abuse of public
office for private gain. See Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 366-367.
831
Goetz and Jenkins, “Hybrid Forms of Accountability”, supra note 774, at 367-368.
832
Shylashri Shankar and Pratap Bhanu Mehta, “Courts and Socioeconomic Rights in India”, in Varun Gauri &
Daniel M. Brinks (eds), Courting Social Justice (Cambridge: Cambridge University Press, 2008) 147-182, at
177.
125
contestation of legal meanings cannot be automatically associated with social change.833 A
review of social rights cases in Colombia shows that the Constitutional Court went from
protecting individuals who were structurally marginalised from the market, to a protection of
particularly vulnerable groups and then to a general protection of the middle class groups that
were being affected by fiscal constraints. The Court started benefiting claimants who were not
structurally excluded from the market but occasionally affected by ‘market dysfunction’
resulting from the economic crisis. The author behind the review however thinks more
research is needed regarding the way in which law, legal language, and social movements
interact to “understand the complex relation between courts and social change better”.834
Concluding remarks on accountability
When human rights enter into development policies and practices, new accountability
relationships and frameworks emerge. There is stronger focus on the state-citizen relationship
compared to the donor-implementing agency accountability relationship that dominates in
‘good development discourse’. Naturally there are overlaps, and strengthening the
accountability of the executive in relation to citizens has been a goal in the good governance
agenda for a long time (driven by donors and international agencies in the name of
democracy, transparency and human rights).
In human rights-based approaches to development, the relationship between rights-holders
and duty-bearers is at the heart of demanding accountability. The act of identifying rights-
holders (and their entitlements) and corresponding duty-bearers (and their obligations)
potentially raise levels of accountability in the development process – and this is something
that can be done in development programming as well as in social activism. However,
international agencies tend to focus on the strengthening of legal accountability mechanisms,
through national legal and judicial reforms, leaving other forms of struggle aside. These ‘legal
human rights-based approaches’ focus on developing institutions and administrative
procedures that can deliver on entitlements and respond to violations, in the name of ‘good
governance’, and less on the link between accountability and popular participation.
In non-legal rights-based approaches, e.g. by social movements, and partly also the by the
World Bank in the area of social accountability,835 advocacy and mobilisation around issues
of the lack of practical implementation of services/rights are important aspects of the
enforceability and responsiveness dimensions of accountability. In some countries, judicial
activism also plays an important role in these broader struggles for accountability. When these
struggles are truly inclusive they can have effects greater than ‘winning the case’. However,
one has to be careful not to generalise the role of rights and the legal framework in
accountability struggles. The specific effects of a legal human rights discourse should be
studied in context as they can have diverse effects.
At the same time as there is a tendency to emphasise the legal aspects of accountability as
requiring national judicial and institutional reform, there is a tendency to neglect legal
accountability flowing from human rights treaties and binding both donors and recipient
countries. This is related to the question mark in the human rights accountability puzzle, i.e.,
the obligations and responsibilities assumed by international organisations and donor states.
833
Pablo Rueda, “Legal Language and Social Change during Colombia’s Economic Crisis”, in Javier A. Couso,
Alexandra Huneeus and Rachel Sieder (eds.), Cultures of Legality: Judicialization and Political Activism in
Latin America (New York: Cambridge University Press, 2010) 25-50, at 49.
834
Rueda, “Legal Language and Social Change”, supra note 833, at 31, 41 and 49.
835
See Ringold and Holla et al, Citizens and Service Delivery, supra note 787.
126
The silence on this issue among the concerned actors undermines the credibility of their intent
to strengthen human rights accountability in development.
Regardless of what form it takes, being able to hold institutions and other power holders that
affects one’s life to account is an important aspect and the subsequent principles are of
participation and empowerment.
2.4.6 Participation
Different perspectives on participation
Participation has long been accepted as a means to improve relevance and effectiveness of
programming, and also based on participation being an end in itself. However, ‘participation’
in development can mean different things depending on the context and the actors involved.
Participatory processes range from people participating by providing information to outside
‘experts’ to participating in decision making as genuine protagonists.836
Andrea Cornwall has written an excellent review and analysis of participation in development
policy and practice called Beneficiary, Consumer, Citizen: Perspectives on Participation for
Poverty Reduction. She recalls three distinct arguments made for participation in the 1960s
and 1970s. According to the first line of argument, development projects were seen to have a
better chance of success if people were involved more directly in them. Participation was
called for on the grounds of efficiency, effectiveness, and equity of access to benefits. The
second set of arguments had a very different origin. They arose directly from the struggles of
popular movement of the time for rights, recognition, and more equitable distribution of
resources. The vision was social change for self-determination and self-governance, and less
about institutions involving their users or clients in the design or delivery of programmes. The
third argument is casting participation as a mutual learning experience.837 In the first
perspective on participation, people participate as ‘beneficiaries’. They are invited to help
make contributions to interventions that are designed to benefit them, and their participation is
held to increase the effectiveness of these interventions. Participation is done for the people.
The second perspective on participation can be associated with broader struggles for
democracy and equity. Participation is by the people, and the aim is for them to gain rights
over and entitlements to resources.838 This perspective is close to issues of citizenship, which
are linked to rights-based approaches that claim participation as a political right, thereby
creating a political, legal and moral imperative for focussing on people’s agency.839 The third
perspective on participation calls for a closer relationship between those who work in
development practice and the people who are supposed to benefit from this practice.
Participation means working with people.840
Cornwall reminds us of what she calls “the ethos of self-reliance” of the 1980s, a kind of ‘do
it for yourself’ attitude in development that implied that beneficiaries became seen as
836
Lisa VeneKlasen, Valerie Miller et al., Rights-Based Approaches and Beyond: Challenges of Linking Rights
and Participation (Brighton: Institute of Development Studies, 2004, IDS Working Paper 235) at 5. Available at
http://www.ids.ac.uk/files/Wp235.pdf, visited 10 May 2012.
837
Andrea Cornwall, Beneficiary, Consumer, Citizen: Perspectives on Participation for Poverty Reduction
(Gothenburg: Sida Studies No. 2, 2000) 20-22.
838
Ibid., at 22.
839
See Gils Mohan and Sam Hickey, “Relocating Participation within a Radical Politics of Development:
Critical Modernism and Citizenship”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to
Transformation (London: Zed Books, 2004) 59-74, at 70.
840
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
127
consumers, or ‘users and choosers’.841 Seeing ‘communities’ as ‘user and chooser’ can imply
that they are engaged in contributing labour, time, or cash to community development
projects, or they are involved in user committees, or they obtain the control for design,
delivery, and maintenance of projects. In the name of ‘participation’ communities are
achieving an increasing role in co-production and in self-provisioning and are thus assuming
many functions of the state. The state becomes “an enabling force by removing laws,
liberalising the economy and opening up access to wider range of services through the
encouragement of NGO involvement and private sector investment in basic service
provision.”842 Cornwall cites Vengroff (1974) as proof that arguments such as these have been
published. Vengroff made a case that self-help efforts can be used to delay the need for
allocation of government funds and divert local demands for development from the central
government to local initiative. This generates mass participation.843 That this is contrary to
human rights thinking is very clear. Human rights require a shift from beneficiary or
consumer to citizen and rights-holder. We will come back to the implications of this.
It can naturally be argued that this is merely an example of ‘bad participation’, in which those
with the power dictate the conditions of the ‘participation’. However, it is important to be
aware of the various understandings and meanings attached to ‘participation’ as defined in
development discourse.
When we come down to the practical level the whole business of participation becomes even
more complicated. Sometimes we can read in reports or policy statements that there has been,
or should be, ‘full participation’ and ‘participation by all stakeholders’. However, looking at
the realities on the ground this can prove to be virtually impossible. Therefore, implicit
choices about who participates are usually made also when the aim is ‘full participation’.
Methodology naturally plays a role here. A distinction can be made between approaches that
place greater emphasis on participation of representatives, i.e., those who speak on behalf of a
particular interest group, and those that aim at more direct democratic forms of participation.
Nevertheless, these boundaries tend to be blurred and pragmatism often leads to the
representation approach being included, in one form or the other.844
We need to be aware that development programmes can never function in a vacuum detached
from local struggles for power and resources, i.e., from the political sphere. However,
participatory approaches have been criticised for ‘depoliticising’ development by
incorporating marginalised individuals in projects that they are unable to question.845 It is
often assumed that participatory approaches are apolitical and non-confrontational since they
build upon an idea of finding consensus. Jenkins and Goetz point out that “in assuming
consensus, different perspectives can be silenced, a problem which has been observed with
regard to the subtle filtering-out of dissensus along gender and class lines.”846 This easily
happens when participatory monitoring and evaluation exercises come from outside the
community and the emphasis is on generation of information from the grassroots and less
841
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 71.
842
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 76.
843
Ibid., at 19. See also de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note
790, at 4-5 for historical background of ‘participation’ as a form of self-help.
844
Andrea Cornwall, “Unpacking ‘Participation’: Models, Meanings and Practices”, 43 Community Development
Journal (2008) 269-283, at 276-277.
845
Glyn Williams, “Towards a Repoliticization of Participatory Development: Political Capabilities and Spaces
of Empowerment”, Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to Transformation
(London: Zed Books, 2004) 92-107, at 93.
846
Rob Jenkins and Anne Marie Goetz, “Accounts and Accountability: Theoretical Implications of the Right-to-
information Movement in India”, 20 Third World Quarterly (1999) 603-622, at 614.
128
emphasis on direct confrontation between people’s knowledge and official accounts.
Participatory techniques are therefore often apolitical in their implicit assumptions that
information will flow ‘from the bottom up’.847 However, politics matter in development and
understanding how participation relates to power structures and political systems is crucial for
a more transformative approach.848
At the same time, we need to be realistic about the limitations of participation in development
programming. People struggling to satisfy daily needs of food and water are not necessarily
interested in attending workshops – or at least that is the assumption often made. Issues such
as functional literacy, analytical, organisational, and advocacy capacities can be challenging
and time-consuming. Under these circumstances it is tempting to involve civil society groups
that do not necessarily represent the poor and disadvantaged instead of direct participation of
the target groups.849 We see elites (chiefs, headmen, landowners, higher castes, the urban
educated) having prominent roles in new spaces created for participation; they represent and
articulate the needs of the poor and marginalised.850 Additionally, it is clear that perfect,
transformative, empowering participation is unattainable most of the time,851 especially in
top-down approaches. However, if these modernist development approaches have caused a
disjuncture between the ‘elite’ and the ‘grassroots’, participation could at least contribute to
building a common language between “the architects and recipients of development
programmes”.852
Human rights: Participation is a right
The trend of emphasising new forms of democratic practice, which build on more direct and
deliberative democratic traditions, broadening notions of political participation beyond the
politics of the ballot box, and an increasing attention to human rights in development are
factors that have contributed to a resurgence of interest in popular participation. Talk of
participation as a democratic right is once again becoming popular.853 In human rights-based
programming the starting point is that participation is a right854 enshrined in many human
rights conventions. This right is often violated. It is argued that fostering participation in
societal decision-making at different levels is an objective in itself. Greater participation is
both a necessary outcome and a necessary aspect of the development process.855 Participation
should be viewed as a process of fostering critical consciousness and decision-making as the
basis for active citizenship.856 This means that participation is first and foremost seen a
democratic principle that is relevant in all social, political, and economic decision-making –
not limited to a development project or programme.
847
Jenkins and Goetz, “Accounts and Accountability”, supra note 848, at 611, 613, 616.
848
de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 22.
849
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 510.
850
Cleaver, “The Social Embeddedness of Agency”, supra note 392, at 274.
851
de Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 24.
852
Williams, “Towards a Repoliticization of Participatory Development”, supra note 845, at 101.
853
Andrea Cornwall, Changing Ideals in a Donor Organisation: ‘Participation’ in Sida (Sussex: IDS Working
Paper 317, January 2009) 17-18. Available at http://www.ids.ac.uk/files/dmfile/Wp317.pdf, visited 9 May 2012.
854
The relationship between participation and human rights was discussed already in the 1970s. See e.g.
Commission on Human Rights report by the Secretary-General on the international dimensions of the right to
development. UN doc. E/CN.4/1334, 2 January 1979.
855
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 494.
856
OHCHR, “Frequently Asked Questions”, supra note 81, at 26.
129
There are some donors that have this view on participation, for example Sida.857 The Swedish
Government’s White paper called The Rights of the Poor – Our Common Responsibility
(1996/97) argues for strategies that enhance the possibilities for the poorest people to take a
greater part in political life, especially at the local level of decision-making.858 (We should,
however, be aware that Sida is also struggling with translating their nice slogans into concrete
practice.)859 The driving force behind the arguments is, however, a belief that
“democratization, establishment of the rule of law, good governance and popular participation
in decision-making are declared to be the most important conditions for progress in the fight
against poverty”860 – rather than seeing participation as a value in itself.
This is not unique to Sida. In human rights discourse, participation is seen as a prerequisite
and starting point for making other claims, and that means fostering greater participation also
has utilitarian motives. The publication Claiming the Millennium Development Goals: A
Human Rights Approach points out that, participation is a fundamental element in achieving
economic, social, and cultural rights, as well as the right to development. Classic civil and
political rights (rights to vote, freedom of expression and association) must, furthermore, be
supported and it is essential to build strong democratic institutions and to consciously create
space for participation in MDG-related activities. This means, inter alia, increasing
transparency, and making information about policies and programmes accessible; creating
channels for participation by the poorest and most marginalised groups; and making human
rights awareness cross-cutting in all programmes.861 This is in itself not new for the
development agenda, the only new element is human rights awareness.
We can differentiate relationships that should be ‘participatory’, (or accountable or non-
discriminatory for that matter): (1) the relationship between the ‘beneficiary’ and the ‘project
management’; (2) that between the people as citizens and rights-holders and the different
power holders, i.e., government institutions, donors, corporations. Traditionally, human rights
have played a role in the latter relationship but as human rights enter into ‘programming’
through human rights-based approaches they increasingly also become relevant in projects,
although this process is certainly not always clear from the contradictions. When people are
enabled to represent and choose for themselves through ‘participatory development’ they will
not always support agendas of gender equality, democracy, and human rights. What
facilitators should do in these situations remain, for the most part, unresolved either in the
guidelines or operational practice.862
Kate Newman has observed in her research that there is in-built tension between participation
and a human rights-based approach which embraces a universal, legislative approach to
rights.863 If participants are asked, it might be that they do not prioritise working on the right
to education, which is the target of the organisation. There is a risk that the priorities and
perspectives of the local groups become over-shadowed by an approach focusing on a specific
857
The Swedish term ‘folkligt deltagande’ made its way into Swedish aid in the 1970s. See Cornwall, Changing
Ideals in a Donor Organisation, supra note 853, at 27.
858
SIDA, The Rights of the Poor – our Common Responsibility (Stockholm: Ministry for Foreign Affairs,
Government Report 1996/97: 169) at 36-37. Available at http://www.sweden.gov.se/content/1/c6/02/
04/08/ab9600e5.pdf, visited 15 May 2012.
859
See Cornwall, Changing Ideals in a Donor Organisation, supra note 853.
860
SIDA, The Rights of the Poor, supra note 858, at 85.
861
OHCHR, Claiming the Millennium Development Goals, supra note 725, 11-12.
862
Cornwall, Changing Ideals in a Donor Organisation, supra note 853, at 54.
863
Kate Newman, “Challenges and Dilemmas in Integrating Human Rights-Based Approaches and Participatory
Approaches to Development: An Exploration of the Experiences of ActionAid International”, 262-263. Doctoral
thesis, University of London, submitted November 2011.
130
human rights-based target. Participation may clash with organisational interests.864 It is
difficult for transformative participation to have pre-defined goals,865 as this goes against the
very idea of allowing the ‘beneficiaries’ to be in the driver’s seat. Moreover, transformatory
participation cannot simply focus on methodologies, but must look at ways of challenging
broader structures, and this requires political strategies.866
Cornwall points out that when ‘participation’ is used as a term to describe a ‘method’ or
‘mechanism’ that is limited to a project or programme, participation is something that is done
to or for people by outsider agencies.867 This is a very different view on participation
compared to one where participation is seen as a right and democratic principle. However, the
lines between the different participation practices in development have been blurred in recent
years when concerns with the relationship between citizens and the state has increasingly
become an issue on the development agenda, particularly in the move towards engaging
citizen participation in policy processes,868 such as Poverty Reduction Development Plans,
and strategies for decentralisation.869
The question is what the human rights perspective adds to participatory approaches, in
addition to giving legal legitimacy? As we have seen the development discourse has for
decades worked on strategies to increase participation on different levels and by different
groups, be it with limited success in practice. It is claimed that human rights-based
approaches can add value to existing participatory approaches by calling for attention to the
quality of the participation process.870 I agree that rights-based development can provide a
commitment to a qualitatively different form of participation so that citizens are facilitated to
exercise their right to participation in challenging and changing institutions that are important
for their lives.871
However, I am less certain that applicable human rights standards can provide a meaningful
‘participation checklist’ with key issues or preconditions that may need to be taken into
account.872 The problem with this argument is that human rights instruments and
interpretations tend to have a rather limited view on popular participation, concentrating more
on legal norms, judicial institutions and technicalities of elections and less on more direct
forms of participation. (Donors and international financial institutions have been accused of
operating with a narrow definition of democracy as multi-party elections which satisfy certain
formal criteria.873)
The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to take
part in the conduct of public affairs, to vote and to be elected at genuine periodic elections,
864
De Campos Guimarães, “Participatory Approaches to Rural Development”, supra note 790, at 21.
865
Williams, “Towards a Repoliticization of Participatory Development”, supra note 845, at 102.
866
Mark Waddington and Giles Mohan, “Failing Forward: Going beyond PRA and Imposed Forms of
Participation”, in Samuel Hickey & Giles Mohan (eds), Participation: From Tyranny to Transformation
(London: Zed Books, 2004) 219-234, at 220.
867
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 36.
868
Ibid., at 60.
869
Mikkelsen, Methods for Development, supra note 147, at 111.
870
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 506.
871
Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note 70, at 255-256.
872
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 507-508. See also OHCHR,
“Frequently Asked Questions”, supra note 81, at 26.
873
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 158.
131
and to have access, on general terms of equality, to public service in his country.874 The
Human Rights Committee has issued authoritative interpretations that give further guidance to
the question about participation. The Committee points out that ‘conduct of public affairs’ is a
“broad concept which relates to the exercise of political power, in particular the exercise of
legislative, executive and administrative powers.” All aspects of public administration, and
the formulation and implementation of policy at international, national, regional, and local
levels are covered.875 What forms participation should take is an issue outside the scope of the
General Comment. The General Comment mentions ‘direct participation’ once,876 and then
concentrates in detail on the different aspects of the rights related to elections. It does in fact
not pay attention to the issue of the quality of participation outside of elections in any other
way than noticing that “no distinction should be made between citizens as regards their
participation on the grounds mentioned in article 2, paragraph 1, and no unreasonable
restrictions should be imposed.”877
The ‘quality criteria’ for participation that is sometimes claimed to come from human rights
discourse has its origins in the Declaration on the Right to Development, which includes the
requirement that participation should be “active, free and meaningful”.878 This criteria is
included in the Common Understanding that goes along the lines of the Declaration on the
Right to Development, stating that active, free, and meaningful participation is an entitlement:
“Every person and all peoples are entitled to active, free and meaningful participation in,
contribution to, and enjoyment of civil, economic, social, cultural and political development
in which human rights and fundamental freedoms can be realized.”879 This indicates that the
UN agencies that are committed to using the Common Understanding as a starting point for
their work have set the level of ambition high. Participation is an entitlement, and the
participatory methods that are used should fulfil the ‘active, free and meaningful’ criteria. The
process is as important as the outcome, which is human rights realisation. However, as we
will see below, the narrow, legalistic approaches that are common in human rights work
corresponds uneasily with this ambition.
The human rights community is not very ‘participatory’
Lisa VeneKlasen et al. have identified differences between how development-focused
organisations and human rights-based organisations understand participation and rights. In
interviews with US based organisations the researchers found that there are diverse
interpretations of these concepts and the approaches applied to advance them vary
accordingly.880 Development organisations and social movements have been pioneers in
approaches to participation. In the early stage of this development, the organisations saw it as
a means to improve programme design and implementation by using local people’s
experiences. Gradually, it was seen as a method to build capacity and, more recently, as a way
to engage in policy change. Until recently, there had been little recognition of the role of
participation in the work of most human rights organisations. Focus has been on the
874
Art. 25 of the International Covenant on Civil and Political Rights (adopted on 16 December 1966 and
entered into force on 23 March 1976). The Convention on the Elimination of All Discrimination of Women and
the Convention on the Rights of the Child are also relevant.
875
Human Rights Committee, General Comment No. 25 (1996), UN doc. CCPR/C/21/Rev.1/Add.7, para. 5.
876
“Citizens may participate directly by taking part in popular assemblies which have the power to make
decisions about local issues or about the affairs of a particular community and in bodies established to represent
citizens in consultation with government.” Ibid, para. 6.
877
Human Rights Committee, General Comment No. 25 (1996), supra note 875, para. 6.
878
Article 3 of the Declaration on the Right to Development, adopted on 4 December 1986, A/RES/41/128.
879
Common Understanding, supra note 50.
880
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 12.
132
mechanics of legal and policy strategies. Another common strategy involved gathering
information from victims of human rights violations. Participation was in this case about
people providing data as informants. With the establishment of national organisations they
gained a greater role as informants and partners. Methodologically, many of the international
as well as local human rights groups have focussed on ‘awareness raising’ concerning laws
and legal procedures rather than more participatory learning processes of helping people to
analyse problems and identify solutions that promote rights in a local setting. Rights groups
often use a discussion of rights as an entry point into communities, instead of starting with
people’s daily problems while ‘good development practice’ emphasises that it is essential to
start where people are and build an explicit vision of social change. The narrow, legalistic
approaches in human rights work have contributed to a ‘crisis’ in rights methodology evident
in the interviews carried out for the research by VeneKlasen and her colleagues. While
working with laws and legal systems is critical, it has become clear that the previous
approaches usually failed to expand the scope of rights or strengthen accountability and
capacity to deliver resources and justice.881
Harri Englund has analysed civic education on human rights and democracy carried out by the
EU funded project National Initiative for Civic Education (NICE) in Malawi. His findings
exemplify the challenges that human rights awareness raising has brought about in the area of
participation. NICE was a substantial project in terms of coverage: its endeavour was to have
an office in every district and its coverage extended to villages and townships through a
network of volunteers. This meant that its coverage of the country was virtually equal to, if
not greater than, the state. People in NICE’s professional staff emphasised their association
with the ‘grassroots’ but the fact is that NICE was a transnational project that, according to
Englund “participated in governing Malawi with resources that in many cases exceeded those
of government departments.”882 Despite the rhetoric of ‘local ownership’ the officers and
volunteers of NICE created a sense of belonging to en exclusive community of human rights
experts. Englund analyses the many subtle ways this was done in his book. I will not relate the
details here but the main conclusion is that there was a distinction between NICE and the
grassroots.883 NICE was an organisation of quasi-professionals, mostly consisting of young
people, who were taught to think of themselves as separate from the grassroots. They
identified with the organisation rather than with the concerns of the grassroots. This was seen
as imperative from the perspective of sponsors and managers, who could not allow NICE to
appear to be challenging the prevailing political relationships in the country.884 Despite
emphasis on ‘participation’ ‘the grassroots’ did not choose what issues were important for
them, and adjust the organisation’s work accordingly, but it remained an abstract principle,
serving top-down managerialism.
Another feature of NICE was its apolitical and nonpartisan nature, which corresponds
uneasily with participation. NICE held public meetings on five thematic areas: local
democracy, the environment, food security, gender development, and HIV/AIDS and
health.885 These themes are all deeply political but NICE managed to relegate politics to a
sphere that posed no threat to wider power relations. The ‘safe sphere’ was ‘the grassroots’,
often used as a synonym for ‘the community’. Englund concludes that NICE’s civic education
defined political problems as if they were reducible to communities, and thereby they made
the communities themselves the problem. The grassroots/community was asked to assume
881
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, 9, 10, 12, 14, 15.
882
Englund, Prisoners of Freedom, supra note 414, at 76.
883
Ibid., at 77.
884
Ibid., at 99-100.
885
Ibid., at 99.
133
responsibility for its own development. In the name of ‘participatory methods’, greater input
to the community’s own development was called for.886 This meant that the people in Malawi
should learn to work for their development without waiting for the world around them to
change first.887 This was not unique to NICE’s work in Malawi, but a wider trend in
development practice. This is an example of ‘either/or’ kind of thinking – concentrating either
on only the community as if the solution is to be found there OR on the wider policy
environment as if the solution is in changed laws and policies. Few programmes have
managed to engage both levels.
Concluding remarks on participation
When the starting point is that participation is a democratic right, participation is by the
people – not something done for them.888 This simple fact is often forgotten in human rights
work as well as in development programming. When experts are involved, they tend to
believe that they know what is best for ‘the poor’ and participation becomes consultation or
superficial involvement in activities.
In human rights discourse participation is a legal right. Adding this as an argument to
strengthen popular participation at all levels of decision-making adds to the legal legitimacy
of participatory approaches in development. However, the argument that human rights-based
approaches can add value to existing participatory approaches by paying attention to the
quality of the participation process does not tolerate closer scrutiny. Many serious
development NGOs that work in partnership with local people have probably given this
question more thought than any human rights body at the international or national level. The
‘active, free and meaningful’ criteria, which is included in the Declaration on the Right to
Development and the Common Understanding has not been given extensive consideration or
interpretation by the human rights community.
Since participation is a right, advancing participation in decision-making is an objective in
itself according to human rights thinking. It is a right to be an active participant in political
processes, being able to speak up and be listened to by those in power – and that has its own
value. However, it is also about enabling people to actively draw on their civil and political
rights in order to achieve something else, often their economic, social and cultural rights.889 In
this way participation strives for a broader change agenda.
It is common both among human rights groups and development organisations, who define
part of their work as participation, to view it as a way to link voice to accountability. The aim
is thus to ensure that personal and community empowerment has a broader political change
agenda and impact. The method is to start with identifying people’s needs or problems and
link them to advocacy strategies designed to influence and hold public power holders
accountable.890 In this case the aim is to increase participation in the relationship between
people as citizens and rights-holders and the different power holders such as government
institutions, donors and corporations that make policy decisions that have great impacts on
poor peoples’ lives.
886
Englund, Prisoners of Freedom, supra note 414, at 100.
887
Ibid., at 103.
888
Compare to Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
889
See Rowlands, “The Right to be Heard”, supra note 829, at 1. Oxfam GB has a global programme of work on
the theme of ‘the right to be heard’.
890
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 14.
134
2.4.7 Empowerment
Power and empowerment – the cause of confusion?
The concept of empowerment gained popularity in the 1980s in development discourse,
particularly among village-level practitioners.891 One can say that empowerment discourse is
a contribution from the grassroots, and in the early days it came with the message from those
working at the local level that, despite the rhetoric of participatory development, the power to
define priorities is in the hands of a minority at the top.892 Today, most development agencies
claim to work on empowerment of the poor; work that no longer only occurs in close, face-to-
face interactions between local organisations and their constituencies. References to
empowerment are today found throughout development cooperation policies and
programmes, and yet definitions are rare. Various attempts have been made, and most of these
definitions focus on issues of gaining power and control over resources, expanding people’s
choices and opportunities, and investing them with the capacities and capabilities needed to
affect change in their lives.893 Most of these definitions, by the UN, the World Bank and
bilateral donors, reflect the idea that ‘empowerment’ is a liberal concern, trying to enable
people to make their own choices,894 thereby reclaiming the power over one’s own life.
VeneKlasen et al. point out that many human rights and development initiatives reflect a
linear understanding of the notion of power. Effective strategies to address power need to take
into account both visible forms of power (legislatures, laws and policies that can discriminate
and undermine rights and participation of certain groups) and hidden forces of power that set
the political agenda and benefit the privileged sectors of society. When working on
participation and rights, actors need to acknowledge that the process that often is described as
empowerment is ultimately about challenging and transforming these types of power relations
and creating new relationships based on equality. In this process, conditions are created to
help people expand their capacity and analyse problems and deal with power at all levels.895
For these reasons this presentation starts with an investigation into the concept of power, and
then moves on to dealing with the two concepts together.
Naila Kabeer observes in her work in the early 1990s that empowerment as a concept is
clearly rooted in the notion of power and powerlessness, or absence of power. Analysis of
powerlessness was, however, abandoned due to the static connotations and the focus shifted to
the more processual aspects of power, i.e., empowerment and disempowerment. This is based
on the insight that those who appear to have little power are still able to resist, to subvert, and
sometimes to transform the conditions of their lives. However, the question remains what is
meant by power, and therefore also by empowerment.896 For all these reasons empowerment
is a highly contested concept. Jo Rowlands points out that the reason for the confusion about
empowerment is because the root-concept – power – is itself disputed. She argues that it is the
differences in the way in which power is understood that can help explain the anomaly that
891
Black, Development in Theory and Practice, supra note 542, at 48.
892
Naila Kabeer, Reversed Realities: Gender Hierarchies in Development Thought (London: Verso, 1994) at
223.
893
Jeremy Holland and Simon Brook, “Measuring Empowerment: Country Indicators”, in Ruth Alsop (ed.)
Power, Rights, and Poverty: Concepts and Connections (New York: The World Bank, 2005) 93-110, at 94.
894
See Holland, Brocklesby and Abugre, “Beyond the Technical Fix?”, supra note, at 264-265.
895
See VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
896
Kabeer, Reversed Realities, supra note 892, at 224.
135
people and organisations as far apart politically as feminists, Western politicians and the
World Bank all have embraced the concept of empowerment.897
Although going deeply into power discourse and the discussions about the meaning of power
and powerlessness is beyond the scope of this chapter, I will briefly highlight the main
differentiations in how power is understood. Many important analyses of power in political
science, sociology, and philosophy presuppose a definition of power as getting someone else
to do what you want them to do (‘power over’). Michal Foucault, Max Weber and Robert
Dahl are examples of influential writers who have worked with this kind of definition, with
their own nuances of course.898 Steven Lukes’ influential book Power: A Radical View, first
published in 1974, also follows the power-as-domination path, although introducing a three
dimensional view on power. Lukes claims that his writing about power is specific: it concerns
power over others, i.e., power as domination. He defines this kind of power as “the ability to
constrain the choices of others, coercing them or securing their compliance, by impeding them
from living as their own nature and judgment dictate.” The question how can we know when
such power is at work, Lukes answers by encouraging penetration that goes behind
appearances for the hidden, least visible forms of power. Power is the ability to bring about
significant outcomes even without active intervention.899
This view on power as either ‘power to’, i.e., the capacity of an actor to affect the decision-
making patterns and outcomes against the wishes of other actors, or as ‘power over’, i.e.,
implicitly accepted and undisputed procedures within institutions that systematically benefit
certain individuals and groups at the expense of others,900 has influenced the debates on power
and empowerment. When power is understood as domination it can be described as ‘zero-
sum’: the more power one person has, the less the other has.901
There seems to be some mismatch between how the notion ‘power to’ is used by different
authors. Lukes uses this notion as one aspect of power as domination, while Jo Rowlands
defines ‘power to’ as “generative power or productive power (sometimes incorporating or
manifesting as forms of resistance or manipulation) which creates new possibilities and
actions without domination.” She mentions the example of leadership that comes from the
wish to see a group achieve what it is capable of. This model of power is not a zero-sum as
one person’s power does not automatically diminish that of another.902 Many feminists have
argued for a reconceptualisation of power as capacity or ability, thereby understanding power
not as ‘power over’ but as ‘power to’ (e.g. transform oneself or others). This is a kind of
ability to foster transformative and empowering growth.903
897
Jo Rowlands, Questioning Empowerment: Working with Women in Honduras (United Kingdom: Oxfam,
1997) at 9.
898
Amy Allen, “Feminist Perspectives on Power”, in Edward N. Zalta (ed.), The Stanford Encyclopedia of
Philosophy, Spring 2011 edition. Available at http://plato.stanford.edu/entries/feminist-power/, visited 17
January 2012.
899
Steven Lukes, Power: A Radical View (Palgrave Macmillan, 2005, second edition) at 12, 85-86. VeneKlasen
et al. point out that many human rights and development initiatives reflect a linear understanding of the notion of
power. Effective strategies to address power need to take into account both visible forms of power (legislatures,
laws and policies that can discriminate and undermine rights and participation of certain groups) and hidden
forces of power that set the political agenda and benefit the privileged sectors of society. See VeneKlasen, Miller
et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
900
Kabeer, Reversed Realities, supra note 892, at 224-225.
901
Rowlands, Questioning Empowerment, supra note 897, at 9.
902
Ibid., at 12.
903
Allen, “Feminist Perspectives on Power”, supra note 898.
136
Rowlands adds the categories ‘power with’ and ‘power from within’ as important for the
understanding of the process of empowerment. She defines ‘power with’ as “a sense of the
whole being greater than the sum of the individuals, especially when a group tackles problems
together”. 904 ‘Power from within’ is creative; it is an affecting and transforming power but
not a controlling power. It is a positive, life-affirming, and empowering force that stands in
stark contrast to power understood as domination, control, or imposing one’s will on other
people.905 ‘Power from within’ has its basis in self-acceptance and self-respect, which implies
respect for and acceptance of others as equals.906 Empowerment must be understood as
including both individual conscientisation907 (‘power within’) as well as collective work,
which lead to politicised ‘power with’ others, which again provides for ‘power to’ bring about
change.908
Rowlands points out that when power is defined as the ability of one person or group to get
another person or group to do something against their will, i.e., ‘power over’, then
empowerment means bringing people who are outside the decision-making process into it.
Understandably, this leads to a strong emphasis on participation in political structure and
formal decision-making as well as on the ability to obtain an income that enables participation
in the economic sphere.909 The World Bank operates with such understandings of
empowerment, although also taking into account participation in informal institutions.
According to the World Bank Sourcebook on empowerment and poverty reduction,
“empowerment is the expansion of assets and capabilities of poor people to participate in,
negotiate with, influence, control, and hold accountable institutions that affect their lives.”910
‘Institutions’ include the state, markets, civil society, and international agencies but also
informal institutions such as norms of social exclusion, exploitative relations, and corruption.
Removal of formal and informal institutional barriers that prevent men and women from
taking action to improve their lives is key to empowerment. People need a range of assets and
capabilities at the individual level (e.g. health, education, housing) as well as at the collective
level (such as the ability to organise and mobilise to take action).911 Microenterprise credit
programmes have been a widely used development intervention that has aimed at improving
these assets and capabilities, especially for women.
Attempts to measure empowerment: An example of microenterprise credit for women
Various studies have been carried out to evaluate whether a development intervention is
‘empowering’, and for these purposes various indicators of empowerment have been set. For
example Hashemi et al. used the following indicators to evaluate the empowerment potential
of women’s participation in credit programmes: mobility; economic security; ability to make
small purchases; ability to make large purchases; involvement in major decisions; relative
freedom from domination by the family; political and legal awareness; participation in public
904
Rowlands, Questioning Empowerment, supra note 897, at 13.
905
Allen, “Feminist Perspectives on Power”, supra note 898.
906
Rowlands, Questioning Empowerment, supra note 897, at 13.
907
Conscientization, or critical consciousness, is a popular education and social concept developed by Paolo
Freire.
908
Parpart, Rai & Staudt, “Rethinking Em(power)ment: An Introduction”, in Jane L. Parpart, Shirin M. Rai &
Kathleen Staudt (eds), Rethinking Empowerment: Gender and Development in a Global/Local World (London:
Routledge, 2002) 3-21, at 4
909
Rowlands, Questioning Empowerment, supra note 897, at 13.
910
The World Bank, “Empowerment and Poverty Reduction: A Sourcebook”, 2002, at vi. Available at
http://siteresources.worldbank.org/INTEMPOWERMENT/Resources/486312-1095094954594/draft.pdf, visited
14 May 2012.
911
The World Bank, “Empowerment and Poverty Reduction”, supra note 910, at vi-vii.
137
protests and political campaigning; and a composite empowerment indicator, meaning that a
woman was classified as ‘empowered’ if she had a positive score on at least five of the eight
indicators.912 The analysis found that involvement in credit programmes does empower
women,913 but that is not what is interesting about this study. What is interesting are the
indicators used to capture what is meant by ‘empowerment’. An ‘empowered’ woman is
someone who goes to the market; owns her house or land; makes small purchases without
asking permission of the husband; makes decisions on issues such as leasing land; is free to
work outside the home; knows the law governing inheritance; and has protested with others
on issues such as domestic violence. These are things that women received ‘empowerment
points’ for in the study.914
The study seems to suggest that there is a clear line between empowerment and
disempowerment, and that ‘outside experts’ can draw conclusions about who has reached the
state of being ‘empowered’. Naila Kabeer makes an important point when she notes that some
of the indicators used may reflect organisational priorities rather than women’s own, and
cannot be taken as evidence of real change in power relationships unless they are also valued
by women themselves as an aspect of their own goals.915 Often empowerment is described as
either an outcome, which can be measured, as in the case above, or as a process. Although in
fact, empowerment is both a process and an outcome. Additionally it is a process that is often
both fluid and unpredictable, making it challenging to measure, which of course does not
mean researchers should not try.916
Kabeer has studied a number of evaluations of credit programmes’ impact on empowerment
of women loanees and she finds that what all these evaluations have in common is the
absence of the voices of the women themselves telling the evaluators what kinds of impact
they might value and what aspect of their own subordinated position in the family and society
they might most want to change. The women had no opportunity to testify on their own behalf
as to what credit has meant to them.917 The central question is whose perspective should count
when assessing meanings and significance. Impact has to be assessed in relation to the
situation before the loan in order to understand what the kinds of changes were made possible
as a result of the loan.918 The women themselves are the best experts on their own situation
before and after the loan, and they can give meaning and significance to the changes they
experience.
In order to explore what the women’s own vantage point can add to our understanding of the
empowerment potential of the loans given, Kabeer made a participatory impact assessment of
a credit programme in Bangladesh.919 Many of the women interviewed gave witness of
improvements in their lives as a result of greater economic and personal autonomy that access
to credit has allowed them to achieve. Many of the changes reported in Kabeer’s study are
also reported in outsider evaluations of the impact of loans, such as reduction in domestic
violence, increased decision-making and greater choice in household resource allocation.
912
Syed M Hashemi, Ruth Schuler Sidney and Ann P Riley, “Rural Credit Programs and Women's
Empowerment in Bangladesh”, 24 World Development (1996) 635-653, at 638-639.
913
Ibid., at 650.
914
See explanation of indicators in Hashemi, Schuler Sidney and Riley, “Rural Credit Programs”, supra note
912, at 638-639.
915
Naila Kabeer, “’Can I buy me love’? Re-Evaluating the Empowerment Potential of Loans to Women in Rural
Bangladesh”, IDS Discussion Paper 363, 1998, at 16. Available at http://www.ids.ac.uk/files/Dp363.pdf, visited
10 May 2012.
916
Parpart, Rai and Staudt, “Rethinking Em(power)ment”, supra note 908, at 4.
917
Kabeer, “’Can I buy me love’?”, supra note 915, at 18.
918
Ibid., 80.
919
Ibid., 19 and 32.
138
What is stressed the most in Kabeer’s study, was the women’s own sense of enhanced self-
worth as economic actors. Her study reveals that one of the most important impacts is related
to women’s enhanced sense of self-worth, of bringing something of value to their
households.920 This internal aspect of empowerment was not captured in the evaluations in
which women’s own experiences where not listened to.
Furthermore, women did not attach as much value to individualised forms of control over
resources as some ‘outside’ evaluations of credit schemes claimed that they do, or ‘should
do’. The ability to participate in joint decision-making about how loans were used and how
the income from loans were to be used mattered more to the women interviewed. Lending did
contribute to a greater voice in household decision-making processes.921 Naturally, the aim of
any empowerment strategy should be to participate with greater strength in decision-making
and actually influence such decisions,922 but this does not have to be at the expense of other
decision-makers. All of this indicates that empowerment is more nuanced when the starting
point is ‘power to’ and ‘power with’ instead of ‘power over’.
Rowlands points out that when power is given a generative meaning, ‘power to’ and ‘power
with’, empowerment is concerned with the processes in which people become aware of their
own interests and how those relate to the interest of others.923 Power is not about domination
and the power of others is not diminished once you get more power. It is a power that
contributes, rather than takes away, a power that strengthens rather than weakens.924
Rowlands distinguishes between three dimensions of empowerment: personal, relational, and
collective. Personal empowerment means “developing a sense of self and individual
confidence and capacity, and undoing the effects of internalised oppression.” (Compare to the
Kabeer study in which one of the most important impacts was related to women’s enhanced
sense of self-worth, of bringing something of value to their households.) Relational
empowerment is experienced when one develops the “ability to negotiate and influence the
nature of a relationship and decisions made within it.” (Compare to the fact that lending did
contribute to a greater voice in household decision-making processes for women.) Collective
empowerment is demonstrated where individuals work in a group to achieve a more extensive
impact.925 This is often very important in work where women work as a group on finding
solutions to common problems. While collective aspects of empowerment are important, it
should not be forgotten that women always act as individuals, and there is no reason to expect
women, even from the same class or caste, to respond identically to new opportunities. It is
not possible to plan an intervention which will be automatically empowering to all women.
What a good intervention can do is to create an environment or provide resources which are
most likely to enable as many women as possible to empower themselves.926
Kabeer raises the issue that empowerment is often conceptualised unidimensionally so that it
is assumed that if women are not found to be empowered by one indicator, they must be
disempowered. Instead empowerment can be seen as “an expansion in the range of potential
choices available to women so that actual outcomes reflect the particular set of choices which
the women in question value”.927 The important point is that it is an expansion of choices
920
Kabeer, “’Can I buy me love’?”, supra note 915, at 51 and 82.
921
Ibid., at 82-83.
922
Rowlands, Questioning Empowerment, supra note 897, at 14.
923
Ibid., at 14.
924
Kabeer, “’Can I buy me love’?”, supra note 915, at 34 and 81.
925
Rowlands, Questioning Empowerment, supra note 897, at 15.
926
Kabeer, “’Can I buy me love’?”, supra note 915, at 85-86.
927
Kabeer, “’Can I buy me love’?”, supra note 915, at 85. Emphasis in original.
139
which the woman in question values. This is the central thinking in Amartya Sen’s capability
approach, where individual advantages are judged by a person’s capability to do things he or
she has reason to value. The focus is on the freedom that a person has to do things that he or
she may value doing or being. The capability approach should be judged in terms of
individual opportunity rather than a specific ‘design’ as to how a society should be organised.
Sen points out that as the capability perspective does point to the central relevance of
inequality of capabilities in the assessment of social disparities, it does not, on its own,
propose any specific formula for policy decisions.928 Therefore, we should keep in mind that
Sen’s work on capabilities is only a source of inspiration for the empowerment discourse, and
there are no clear answers how these notions should be operationalised into practice in
development policies or otherwise.
Based on her study, Kabeer draws some broader lessons regarding empowerment and how to
evaluate interventions that claim to empower people. Her first point is that ‘empowerment’ is
a multidimensional process of change that cannot be reduced to any single aspect of process
or outcome.929 In her book from 1994 Kabeer also highlighted the multidimensional nature of
power and suggested that empowerment strategies of women must build on ‘the power
within’ as the basis for improving their ability to control resources, to set agendas and make
decisions.930 Strategies of ‘empowerment from within’ provide women with new perspectives
as they are able to review their lives from other vantage points. Reflection, analysis and
assessment of what has been taken for granted uncovers socially constructed and socially
shared basis of apparently individual problems. Moreover, new forms of consciousness can
arise out of women’s new access to analytical skills, social networks, organisational strength,
and a sense of not being alone.931
Empowerment is not something done to people, but rather it is a participatory process that
engages people in reflection, inquiry, and action.932 Development cooperation initiatives
cannot ‘empower women’ but instead programmes can help to create the conditions whereby
women can become “agents of their own development and empowerment”.933 Institutions,
including international agencies, can support processes that increase women’s self-reliance,
building self-confidence, solving problems, gaining skills, and help them set their own
agendas.934
Are human rights empowering?
The Common Understanding does not include empowerment in the list of human rights
principles. Yet, empowerment is often included as an important element of human rights-
based approaches to development. The question is what human rights add to the ‘good
development discourse’ on empowerment? Are human rights empowering? This question is
far too great to be answered here and it reappears throughout the thesis. First of all, I will not
attempt to answer the question whether the practice of human rights has empowering
outcomes, i.e., are the results from struggles over rights empowering? I will instead focus on
928
Amartya Sen, The Idea of Justice (Cambridge: Harvard University Press, 2009) at 231-232.
929
Kabeer, “’Can I buy me love’?”, supra note 915, at 80.
930
Kabeer, Reversed Realities, supra note 892, at 229.
931
Ibid., at 245-246.
932
See VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 9.
933
Development Assistance Committee, “DAC Source Book on Concepts and Approaches Linked to Gender
Equality”, OECD, Paris 1998, at 9. Available at http://www.oecd.org/dataoecd/4/16/31572047.pdf, visited 14
May 2012.
934
CIDA’s Policy on Gender Equality. Available at http://w3.acdi-cida.gc.ca/acdi-cida/acdi-cida.nsf/eng/EMA-
218123616-NN9, visited 14 May 2012.
140
the question of whether human rights discourse and language is empowering or
disempowering from the perspective of marginalised rights-holders. My focus is thereby more
on the processual aspects of empowerment.
It is a fact that human rights discourse has captured the attention of people around the world
in a way that few other discourses have done. Likewise, it is a fact that an enormous global
phenomenon has emerged on human rights.935 Human rights thereby play a political role,
empowering the individual and limiting the power of the sovereign, but we should keep in
mind that they are foremost a rights discourse rooted in the legal tradition.936 Whether this is a
strength or a weakness can be debated and different actors have their own opinions about this.
With regard to the empowerment potential of human rights, one can first of all note that the
establishment of human rights as a legal structure is one aspect, and the possibilities to use
this structure to expand possibilities is another. When there are legal norms to protect human
rights of individuals in a society this is naturally a good starting point for empowerment
defined by Kabeer as “an expansion in the range of potential choices available”. However,
we should not forget the other half of the definition “so that actual outcomes reflect the
particular set of choices which the women [or men] in question value”,937 which indicates the
importance of whose perspective counts in empowerment processes. Human rights must be
valued as important and relevant in the daily lives of marginalised people in order for them to
become relevant, as a language used against oppression, and as tools used to improve the
quality of peoples’ lives.
Concerning the human rights language associated with human rights discourse, Charles R.
Beitz observes that “the language of human rights has become the common idiom of social
criticism in global politics”.938 Human rights have called forth an advocacy revolution in the
form of the emergence of a network of non-governmental organisations to pressure states to
practice what they preach. Human rights have thus given witnesses and bystanders a stake in
abuse and oppression both within and beyond the national borders.939
Hugo Slim sees empowering potential as the language of rights enters international
development. The same people who used to be seen as ‘needy’ or ‘beneficiaries’ can now
present themselves as rightful and dignified people who “can make just demands of power
and spell out the duties of power in terms of moral and political goods.” These people move
from being objects to being subjects of their own free speech.940 Indeed it is easy to agree that
it is more empowering to be a claimant of rights than an object of a more or less arbitrary
charity. At the same time, we should be aware that the language of human rights has many
limitations. First of all, the language of human rights is not only spoken by the oppressed but
also by the powerful, by the very same governments, inter-governmental organisations and
government agencies that are criticised for oppressive policies. Human rights language has
become ‘mainstreamed’ into policy frameworks of states, multilateral lending institutions and
the UN.941 Similarly, it can be observed that from one aspect codified human rights legitimate
the power of states; and from another they are also the means to challenge this power.942
935
Miia Halme, Human Rights in Action (University of Helsinki, Research Series in Anthropology, 2008) at 211.
936
Paulina Tambakaki, Human Rights, or Citizenship? (New York, Birbeck Law Press: 2010) at 13.
937
Kabeer, “’Can I buy me love’?”, supra note 915, at 85. Emphasis in original.
938
In The Idea of Human Rights (Oxford: Oxford University Press, 2009), preference.
939
Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001) at 8.
940
Slim, “A Response to Peter Uvin”, supra note 57, at 3.
941
Ignatieff, Human Rights as Politics and Idolatry, supra note 939, at 22.
942
See Tambakaki, Human Rights, or Citizenship?, supra note 936, at 74. Or as Mahmood Mamdani points out
“Rights talk legitimises power because it develops an accountability of power.” Mamdani, Beyond Rights Talk
and Culture Talk, supra note 37, at 6.
141
Moreover, we must keep in mind that although there are analogies to human rights ideas in
various cultural traditions, the particular form that they have taken in the human rights
movement have post-Enlightenment, rationalist, secular, Western, modern and capitalist
origins.943 When combined with the unequal relationships between the West and everyone
else, and the fact that human rights criticism has been an overwhelmingly one-way street,944 it
is clear that the language of human rights can be perceived as disempowering for many people
and groups in the so called developing world.
Human rights education
The language of human rights has been preached to a great extent as part of ‘awareness
raising’, in the belief that if people only know that they have human rights, they will start
claiming them. Miia Halme observes in her doctoral dissertation that one characteristic of the
human rights phenomenon is the radical and transformative potential of human rights
discourse; “adherence to the human rights discourse has come to mark the abandoning of old
ideologies and embracing of new ways of thinking.” This discourse promises to challenge old
structures of oppression and, in the name of the equal worth of all, to liberate the individual
from them. One of the dominant tools used to realise these desires is commonly construed as
human rights education, making the individuals conscious of oppression and empowering
them.945
The objective of human rights education is said to include not only a learning process about
human rights and mechanisms for their protection, but also skills to apply them. Developing
values, attitudes, and behaviour which reinforce human rights is another element of human
rights education, and so is taking action to defend and promote them.946 According to Garth
Meintjes human rights education should lead to a process of acquiring the knowledge and
critical awareness needed to understand and question oppressive patterns of social, political,
and economic organisation. Therefore, human rights education is often claimed to be
empowering. The idea of human rights education as empowerment, however, demands
pedagogical skills that differ in terms of objectives and methods from other areas of
conventionally defined education. Meintjes claims that the danger is that while the rhetoric of
empowerment is increasingly accepted, the ends and means remain those of conventional
education.947
This is probably what happened in the NICE project in Malawi that we reviewed in the
section on participation. NICE is, however, not the only example of educational activities on
human rights failing to employ pedagogical methods that are empowering. In her analysis of
certain educational activities of a Nordic and Scandinavian network of human rights experts,
Halme asks “whether its educational mode provides students with increasing control or
mastery over their own lives with which to challenge oppressive structures”,948 (central
elements of empowerment) and she assesses how the education activities can be seen as
943
David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton: Oxford
University Press, 2004) at 18.
944
Ibid., at 20
945
Halme, Human Rights in Action, supra note 935, at 212.
946
Elena Ippoliti, “Human Rights Education: Global Initiatives at the United Nations”, in C. Mahler, A. Mihr &
R. Toivanen (eds), The United Nations Decade for Human Rights Education and the Inclusion of National
Minorities (Frankfurt am Main, Peter Lang, 2009) 11-18, at 12.
947
Garth Meintjes, “Human Rights Education as Empowerment: Reflections on Pedagogy”, in G. J.
Andreopoulos & R. P. Claude (eds), Human Rights Education for the Twenty-First Century (Philadelphia,
University of Pennsylvania Press: 1997) 64-70, at 65-66, 70.
948
Halme, Human Rights in Action, supra note 935, at 106.
142
contributing to the goal of empowering participants.949 Halme concludes that learning is
construed as the adoption of necessary information ‘dispensed’ by authorities to those who are
to receive it, and the outcome of the learning process is static – instead of empowering
students to become conscious of their own participation in the creation of knowledge.950 Her
conclusion is that the learning process is static instead of empowering, and participants are
held in predetermined positions. There is strict separation between faculty participants who
hold ‘knowledge’ and students who benefit from this knowledge.951
As we have seen, Englund has made similar observations concerning ‘civic education’
activities on the subject of human rights and democratisation in Malawi. He views human
rights discourse in Malawi as a disempowering discourse, characterised by elitism, and he
calls it a “thinly veiled patronizing approach that enabled self-proclaimed experts to discount
popular responses to their interventions.”952
Halme and Englund both come to similar conclusions: human rights education, as it has been
provided in their respective case studies, has missed opportunities to empower participants.
Both see human rights education as hierarchical and non-participatory. Challenging
oppressive structures is not taking place and instead the teachers or ‘facilitators’ are placed
within exciting hierarchies.953 Naturally, there are great differences between human rights
education in a Nordic setting, at a university level, and civic education carried out in rural
Malawi. However, it seems that the approaches used are not far apart, both seeing the process
of enhancing knowledge as linear, flowing from the teacher to the student. According to Paulo
Freire education should begin with resolving the teacher-student contradiction so that both are
simultaneously teachers and students. This approach is not found in conventional, ‘banking’
education.954
One reason that human rights education has challenges in being empowering is perhaps the
strong discourse of ‘expert knowledge’ prevalent in human rights discourse. The concept of
human rights is seen as ready-defined, by experts. Empowerment is hard to reach if ‘students’
are seen as only the receivers of ready-defined concepts, instead of partners in a process
where the human rights concept itself is critically analysed. It is necessary to contextualise
and give meaning to human rights so that they are understood in the context of people’s lived
experience. People may have the experience of denial of the right to health care or freedom of
expression. In a ‘human rights from below’ approach, the facilitators start from people’s
personal stories, hopes, disappointments, pain and experience of oppression – not from a
remote ‘universal declaration’ or bill of rights. There can still be reference to such documents
“but only in the sense that they represent specific attempts to articulate humanity in particular
contexts and at particular times”. They are not ‘the holy writ’. Instead they can be examined
from the perspective of the actors’ reality.955
Perhaps it should not be surprising that human rights education has challenges to be
empowering as the whole idea about empowerment is fairly new to human rights discourse
949
Halme, Human Rights in Action, supra note 935, at 107.
950
Ibid., at 115.
951
Ibid., at 213.
952
Englund, Prisoners of Freedom, supra note 414, at 69.
953
Ibid., at 104.
954
Freire, Pedagogy of the Oppressed, supra note 364, at 53-54.
955
Ife, Human Rights from Below, supra note 8, at 203.
143
and has been invented by other discourses, such as that of alternative development956 and
pedagogy.957
This short analysis highlights the tensions and paradoxes between the ambition of human
rights and the actual practices that are trying to translate the principles into reality on the
ground. In theory, human rights can be very empowering – in practice reality is more
complicated and complex.
Human rights-based empowerment
Power has the ability to prevent people’s participation and the fulfilment of their rights, and
therefore questions of power and empowerment are central for human rights-based work.958
Darrow and Tomas suggest that human rights do add value to good programming since they
imply dignity and respect for the inherent worth of the individual, an argument which is based
on the universal character of human rights. They use the same definition of empowerment as
the World Bank in its Sourcebook, only adding that empowerment means increasing the
capacities of people to claim and exercise their rights effectively. (This kind of rights
language is not used by the World Bank.) In order to support empowerment, it is held that
programme priorities should be in the area of education and access to information; strategies
for inclusion and participation in decision-making; accountability of state officials; and
building of local organisational capacity.959
Hans-Otto Sano has observed that the practice of rights-based empowerment include activities
for rights-holder mobilisation, civil society participation, and advocacy strategies that include
campaigns and litigation. This results in processes of knowledge enhancement and learning,
in organisational development and capacity building, in the creation of new channels of
interaction, and also in direct actions of rights-realisation.960
This highlights the formal and external aspects of creating an environment in which people
can empower themselves. Emphasis in human rights-based empowerment is on enhancing
people’s ability to claim and exercise their rights effectively.961 (This is an important feature
of the Common Understanding despite the fact that the word ‘empowerment’ is not used in
this context.) There is no questioning whether people value expanding their skills and choices
when claiming and exercising their rights.
As in the discourse and practice around human rights-based approaches to development
assistance in general, the discourse around empowerment is also diverse. While some
agencies see rights as a means of addressing issues of accountability of duty-holders, others
put rights into the context of enabling people to empower themselves to overcome obstacles
to the realisation of social and economic rights. Cornwall and Nyamu-Musembi critically
observe that CARE’s work in Kenya is an example of the latter, where ‘empowerment’ has
meant ‘opting-out’ of public services rather than making demands on the state as a duty-
holder.962 Just as ‘participation’ can be (mis)used to give communities an increasing role in
956
See e.g. Friedman, Empowerment: The Politics of Alternative Development, supra note 263.
957
Although Paulo Freire did not use the concept ‘empowerment’ he is often considered a pioneer in this area
with his classic book The Pedagogy of Oppressed, first edition of 1971.
958
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
959
Darrow and Tomas, “Power, Capture, and Conflict”, supra note 65, at 494. Emphasis is that of the author.
960
Sano, “Making Rights Work for the Benefit of the Poor”, supra note 790, at 11.
961
See e.g., Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note
708, at 51.
962
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1431.
144
co-production and self-provisioning of many services,963 and thereby giving rights-holders
many functions that, according to human rights instruments, should belong to the state, so can
‘empowerment’ be used as a strategy to increase self-reliance instead of making demands on
duty-holders.
Another strategy for empowerment is to work alongside poor people as advocates, and
thereby increase the capacity of citizens to claim their rights.964 Ideally, human rights work
combines a local perspective with a national and global perspective. In development practice,
empowerment is mostly associated with the local level. Jane Parpart et al. point out that
empowerment cannot be understood only at the local level but requires attention to the
“specific historical struggles of women and men within structures and discourses of power
operating at micro-, meso- and macro-levels.”965
There can be misunderstandings when the slogan ‘people cannot be empowered, only
empower themselves’, which is an important insight, is translated into human rights-based
work. People can empower themselves to make demands on duty-holders. Rights-based
empowerment does not mean people start building the school on their own (or whatever
demand it is they have). When mobilisation for human rights is on the agenda, empowerment
does not automatically lead to increased self-reliance. Instead people start to make demands
on the duty-holders to respect, protect, and fulfil their rights. If this process can be called
‘empowerment’ can and should be debated. The issues at stake are especially who sets the
agenda, who decides what issue to mobilise around, and what happens in the process of
translating people’s daily challenges into human rights language.
VeneKlasen points out that when working on participation and rights, organisations need to
acknowledge that the process that often is described as empowerment is ultimately about
challenging and transforming these types of power relations and creating new relationships
based on equality. In this process, conditions are created to help people expand their capacity
and analyse problems and deal with power at all levels.966 Considering that human rights
discourse, and human rights education in particular, is often characterised by elitism and static
learning models, this kind of work needs to start with the human rights organisations
themselves.
Concluding remarks on empowerment
As pointed out by Kabeer, empowerment is a multidimensional process of change that cannot
be reduced to one aspect, such as human rights. The human rights-based definition of
empowerment, suggested by Darrow and Tomas, i.e., “increasing the capacities of people to
claim and exercise their rights effectively”, is too narrow. Human rights can play a role in
empowerment processes but the willingness to use human rights as tools to expand
possibilities must come from within the individual or group, especially considering that
human rights discourse is associated with elite capture in many countries of the South.
Following on from the thinking by Kabeer and Sen, individuals must have reason to value the
actual outcome that can be achieved through asserting human rights.
As human rights traditionally have been seen as safeguards against power, and power in this
case means ‘power over’, it is natural that human rights discourse has focussed on meanings
of empowerment that use this kind of definition of power as the starting point. Human rights-
963
See Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 76.
964
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1430.
965
Parpart, Rai and Staudt, “Rethinking Em(power)ment”, supra note 908, at 12.
966
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 8-9.
145
based empowerment strategies then naturally focus on access to information, education,
bringing people outside of decision-making into it, accountability of state-officials, advocacy
strategies that include campaigns and litigation. There is less focus on ‘empowerment from
within’ which would provide people with possibilities to analyse and review their lives from
new perspectives. As far as I know there has not been any research on what role a human
rights perspective could possibly add to this kind of analysis, reflection, and assessment. Both
aspects of empowerment are important. If empowerment is to go beyond rhetoric to action,
economic and political power to use legislation, having access to institutions and resources is
a key issue, especially for women.
It is clear that the process of empowerment has both an internal and external aspect; it
includes inner reflection about one’s own inherent worth and ability as a human being as well
as outer reflection and action challenging and transforming ridged relationships. For example,
women’s empowerment cannot come in the same language as has been infused by values of
patriarchy. Empowerment has to come from a place within. The fact that someone learns that
he or she has human rights just because he or she was born human, does not necessarily
change this individual’s sense of self-worth. In addition, inner reflection and transformation is
needed. ‘Power with’ others through collective action and politics is often a force that has
transformative capacity, leading to processes and outcomes that are valued as empowering by
the participants themselves.
The purpose of reviewing some of the critical accounts made of human rights discourse,
especially human rights education, as disempowering is to remind us that challenging old
structures of oppression seldom occurs in a neatly organised fashion, from comfortable seats
in a class room. Learning about human rights does not automatically lead to empowerment, or
to taking actions to achieve change and address oppression. Change is a messy process, as
most organisations involved in rights-based empowerment have learned. Moreover, it is clear
that the role of human rights in processes of change can be static and disempowering or
‘alive’, claimed in the moment, and empowering. The context and the process matter and
often there is a fine line between empowerment and disempowerment. We should also keep in
mind that just because there are instances of human rights discourse failing to live up its own
ambitions to achieve change, this does not mean that human rights should be abandoned as a
source of inspiration that can inform struggles against oppression.
2.4.8 Concluding remarks on human rights principles
This chapter has tried to give an overview over diverging concepts and interpretations. It has
also posed critical questions concerning the added value of human rights principles in
development, and whether human rights discourse contributes to empowerment.
One of the overall questions in this thesis is what role human rights (as standards, as
principles, as a language) play in development practice, and whether they have transformative
potential. The answer to this question always depends on the context – and in order to
understand the context it is important to understand how the actors involved in shaping this
context define and apply so called human rights principles. Participation, accountability, and
empowerment can be used as labels in a technocratic, ‘from above’ fashion that leaves little
room for deeper structural change or these principles can give people opportunities to
challenge structures that are hindering their human rights realisation, leading to personal and
political transformation.
It is important to be aware of the different forms that the various so called human rights
principles can take in development cooperation and otherwise. This is especially true
146
concerning accountability, participation, and empowerment which have strong foundations in
other disciplines and discourses outside of the normative human rights tradition. Once we
know something about how the principles in question have been interpreted and applied in
‘good development practice’ it is easier to be clear about the link they have to human rights.
It is not always possible to see a clear distinction between good development principles using
instrumental or utilitarian motivations and normatively-based human rights approaches seeing
human rights as ends in themselves (a distinction made by Darrow and Tomas). Development
practice is far too complex to allow this kind of comparison, and the role human rights in
general and human rights principles in particular play in this field is very diverse. Again, we
must keep in mind that there is not one human rights-based approach to development but
many approaches with different working methods and overall motivations for their work. A
general distinction seems to be between an ‘empowerment model’ to human rights and
development and a more legalistic approach concerning the role of human rights standards in
development practice. The latter is driven by the conviction that human rights are ends in
themselves while the former strives for broader and deeper social and political change, also
questioning the human rights concept itself. Human rights and the principles of participation,
accountability, and empowerment are means to achieving this wider agenda.
147
PART III THE ROLE OF HUMAN RIGHTS IN FOOD SECURITY
EFFORTS IN MALAWI: CHARITY-BASED, RIGHTS-
BASED AND LEGAL APPROACHES
3.1 Human rights discourses in Malawi: Giving meaning to ‘human rights’
In this chapter I discuss human rights discourse in Malawi and how the concept of ‘human
rights’ has been used and interpreted by local actors. In Malawi there is a struggle between
what Merry calls “the generalizing strategies for transnational actors and the particularistic
techniques of activists working within local contexts”.967 There are no easy answers for
solving these struggles, but I do think it is time to strengthen the local voices that are experts
on the contexts within which they live and work.
However, during my field research I was shocked by the paternalistic attitudes the urban elite
had towards rural Malawians. There was very little solidarity or commitment to making
changes in social justice. Englund points out that lack of commitment to social justice is partly
explained by the relative absence of radical ideologies among the intelligentsia.968 Whether
human rights have the potential to become a radical ideology that would challenge the status
quo remains to be seen.
3.1.1 Second liberation: Commitment to a multiparty democracy, human rights, and a
market economy
“The issue of human rights is a new thing to Malawi. And sometimes it brings a
lot of confusion, fears, it’s natural.”969
In the following I will give a brief overview of the historic developments behind a formal
commitment to human rights and multiparty democracy. This overview of the Malawian
human rights discourse focuses on a limited time period, starting from the ‘second liberation’
in the early 1990s to 2006 when I conducted my field research.
Malawi was ruled by one of the most repressive regimes in Africa after independence in 1964.
Dr Hastings Kamuzu Banda had established an autocratic leadership system, making himself
the undisputable leader. Despite brutal violations of human rights, Banda was generously
supported with Western aid during the cold war because of his strict anti-communist stance.
Around 1991, pressure groups against Banda were founded and in 1992 Banda saw no other
way than to call for a referendum on the question of whether a multiparty system of
government should be introduced or not.970
Neither of the two largest churches had been known for being critical of the Banda regime.
However, through personal contact between opposition activists and the Catholic Bishops, the
Catholic clergy was approached and a Pastoral Letter was read in Catholic churches
throughout the country in 1992, publicly criticising the regime for its poor human rights
967
Merry, Human Rights and Gender Violence, supra note 287, at 103.
968
Harri Englund, Human Rights and African Airwaves: Mediating Equality on the Chichewa Radio
(Bloomington: Indiana University Press, 2011) at 5.
969
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
970
Heiko Meinhardt and Nandini Patel, Malawi’s Process of Democratic Transition: An Analysis of Political
Developments Between 1990 and 2003 (Lilongwe: Konrad-Adenauer-Stiftung, 2003) at 3, 5, 9-10.
148
record, lack of democratic rights,971 and Malawi’s ‘climate of mistrust and fear’.972 This was
mentioned often by my informants as an important mile stone in the Malawian human rights
movement.
In a referendum held on 14 June 1993, two-thirds of Malawians voted for a multiparty
democracy. The Banda regime did not concede defeat but the momentum behind the
democratic movement was stronger than Banda had calculated. Two weeks later the Malawi
Parliament, which had been restricted to the ruling Malawi Congress Party (MCP) for 29
years, repealed Section 4 of the Constitution to allow opposition parties. A National
Consultative Council and a National Executive Council were set up to examine the
Constitution and the electoral process. Opposition groups and the Malawi Law Society made
requests for assistance from international legal experts on constitutional law, the electoral
process and a Bill of Rights, and to advise on constitutional and legal reform.973
Amnesty International called for human rights guarantees in the Constitution to “provide the
framework for the institutionalization of human rights safeguards”, based on relevant
international and regional human rights standards,974 and consequently a democratic
constitution was drafted within a few months, with considerable input from foreign experts.975
The international community had become interested in human rights and good governance
rather than simply anti-communism976 and the democratisation process was encouraged by
Western donors, but this only partly explains why Banda accepted the democratic transition,
which was carried out in a reasonably peaceful way. Other factors such as age and illness of
the president as well as the military’s unwillingness to participate in repressive actions against
the opposition movements were also important.977
The 1994 elections were won by the United Democratic Front (UDF) and Bakili Muluzu, a
former servant of the old regime, was elected president.978 There was no doubt that both in the
1993 referendum and in the General Elections of 1994 Malawians voted for change. However,
it was far from clear what this change would involve other than the replacement of Banda and
his loyalists. The fundamental socio-economic structures remained tightly in place, the
politics of patronage continued and attempts to address massive poverty remained at the level
of rhetoric.979
The 1999 elections were again won by the UDF,980 led by President Muluzi. Five years later
there was an outcry among civil society at Muluzi’s attempt to stand for an unconstitutional
third term,981 and finally the 2004 Presidential election was won by Bingu wa Mutharika, as
the candidate of the UDF. Mutharika was handpicked by Muluzi, who hoped he would follow
his directives. In early 2005, Mutharika announced he was leaving the UDF and forming a
971
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 8.
972
Harri Englund, “The Dead Hand of Human Rights: Contrasting Christianities in Post-Transition Malawi”, 38
Journal of Modern African Studies (2000) 579-603, at 584.
973
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 12.
974
Amnesty International, “Amnesty International’s Recommendations for Permanent Protection of Basic
Human Rights Following the Pro-Democracy Vote”, Document – Malawi, September 1993 (AI Index AFR
36/31/93). Available at www.amnesty.org, visited 14 May 2012.
975
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 12.
976
Kings M. Phiri and Kenneth R. Ross, “From Totalitarianism to Democracy in Malawi”, in K. M. Phiri & K.
R. Ross (eds), Democratization in Malawi: A Stocktaking (Blantyre: Christian Literature Association in Malawi,
1998) 9-20. at 11.
977
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 11.
978
Ibid.
979
Phiri and Ross, “From Totalitarianism to Democracy in Malawi”, supra note 976, at 12.
980
African Elections Database. Available at http://africanelections.tripod.com/mw.html, visited 20 August 2012.
981
See Englund, Human Rights and African Airwaves, supra note 968, at 6.
149
new party called the Democratic Progressive Party (DPP).982 The formal commitment to
human rights, made by the new government, seemed to soothe the donors’ anxieties
concerning the level of Malawi’s democratic reform.983 Food security became one of
Mutharika’s priorities, and policies in favour of smallholder famers, such as input subsidies,
made him popular.984
At the time of my field research, at the end of 2006, human rights were very much part of an
official discourse. Human rights were referred to in newspapers, on the radio, in public
speeches by politicians and by government officials whom I interviewed. I share Englund’s
observation that the values of multiparty democracy, human rights, and a market economy are
seemingly shared values. What all political parties in Malawi share since the transition to
multiparty system of government, is commitment to liberalism in both politics and the
economy. What distinguishes the parties is their regional base of popular support.985
3.1.2 ‘Freedom’ discourse
There seems to be agreement that the major difference between the old and new eras is the
greater extent of ‘freedom’ – ufulu.986 Ufulu is Chichewa, which is the sole national language
of Malawi and one of seven national languages of Zambia and has been offered as a
translation of ‘human rights’.987 For local human rights discourse it is problematic that the
entire human rights discourse has been embodied in the European linguistic idiom. Going
deeply into the question of the role of imperial languages in the promotion of human rights
awareness in Africa988 in general and Malawi in particular is, however, beyond the scope of
this chapter. It is sufficient to know that ufulu underlines freedoms rather than entitlements.
A longer version is ufulu wachibadwidwe, in which ufulu refers to ‘freedom’, ‘liberty’, and
‘independence’ while the adjectival wachibadwidwe, using the verb kubadwa which means
‘to be born’, and thereby hinges on the individual’s birth right. Englund refers to a Malawian
linguist, Pascal Kishindo, who has suggested that ufulu wachibadwidwe is actually a new
coinage.989 Nevertheless, ufulu was used by most human rights actors in Malawi and also by
researchers describing human rights discourse in the country. I have, however, not found any
research on the origin of the ufulu concept. Englund has, during extensive periods of field
research in Malawi and Zambia, not been able to trace the authorship of ufulu.990 Orally I
have been informed by Malawians that mfulu actually is a more accurate description of the
human rights idea, and is seen as something that has been part of Malawian culture long
before the ‘second liberation’.991 The fact that the name of the Malawi Human Rights
982
Lisa Gilman, The Dance of Politics: Gender, Performance, and Democratization in Malawi (Philadelphia:
Temple University Press, 2009) at 185-186.
983
Englund, “The Dead Hand of Human Rights”, supra note 972, at 582.
984
Englund, Human Rights and African Airwaves, supra note 968, at 7.
985
Harri Englund, “Introduction”, in H. Englund (ed.), A Democracy of Chameleons: Politics and Culture in the
New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 11-24, at 11-12.
986
Englund, “The Dead Hand of Human Rights”, supra note 972, at 583.
987
Englund, Prisoners of Freedom, supra note 414, at 49.
988
Alamin M. Mazrui, “Globalism and Some Linguistic Dimensions of Human Rights in Africa”, in P. T. Zeleza
& P. J. McConnaughay (eds), Human Rights, the Rule of Law, and Development in Africa (Philadelphia:
University of Pennsylvania Press, 2004) 52-70, at 56.
989
Englund, Prisoners of Freedom, supra note 414, at 49. See also Pascal Kishindo, “Evolution of Political
Terminology in Chichewa and the Changing political Culture in Malawi”, 9 Nordic Journal of African Studies,
(2000) 20-30.
990
Englund, Prisoners of Freedom, supra note 414, at 50.
991
These discussions took place in Copenhagen in November 2011 when I presented an earlier draft of this
chapter in conjunction with a workshop that was part of the Future of the Nordic Development Research
150
Commission Bulletin is Mfulu shows that these terms are used in parallel, but with ufulu being
more dominant.
Many Malawians also use ufulu to describe liberalism ‘gone wild’, characterised by disrespect
by youths against elders, immoral dress code, disobedience and political disunity.992 One of
Thoko Kaime’s informants relates this to the individual focus of, in this case, children’s
rights:
These freedoms that children are said to have nowadays are good but sometimes
they cause problems. The unity and peace that was in the family is now gone and
parents have no freedom any more... According to our culture everyone should be
similarly treated.993
Such accounts seem to indicate that there has been little discussion about the content of the
human rights concept itself and how that fits into the lived reality of Malawian children,
women, and men. Englund makes the argument that the notions of rights and freedoms have
come to be defined in a particular way in Malawi, steered by foreign donors and
creditors,994 that is, ‘from above’. One example of donor influence is the Malawi Human
Rights Resource Centre (MHRRC), established in 1997 by the Danish Centre for Human
Rights as a project with the “objective to strengthen the implementation of human rights
standards in Malawi.”995 Although the MHRRC consisted exclusively of Malawian staff
members, and seen as an obvious advantage by the funding Centre, concern was raised in an
early evaluation report that “a ‘Malawi way’ of doing things is acceptable only when it is in
line with international norms and standards. It becomes the ‘wrong’ way, however, when it
is not.”996
According to this line of reasoning, localised human rights discourses should be in line with
how human rights are defined in international legal documents and there should be no room
for too much vernaculisation. On this issue we should, however, be careful in drawing
conclusions. It is clear that local activists, politicians, journalists and, religious leaders have
eagerly participated in the process of giving meaning to the ‘human rights talk’ in Malawi,
and it would be an oversimplification to say that human rights represent a Northern
agenda.997 Rather, human rights discourse has been dominated by elites that have close
connections to donor representatives. (Regarding the role of donors, there is also the
perspective that was presented in some of my interviews with local human rights activists
that foreign donors have avoided rights talk and been more comfortable in ‘welfare
issues’.998)
Conference. I am grateful to Dr. Desmond Kaunda for pointing out the parallel usage of ufulu and mfulu in the
Malawian human rights discourse.
992
Englund, “The Dead Hand of Human Rights”, supra note 972, at 583.
993
Referred to in Kaime, “The Struggle for Context”, supra note 492, at 48. Emphasis added.
994
Englund, Prisoners of Freedom, supra note 414, at 5.
995
Evaluation Report, The Malawi Human Rights Resource Centre, prepared by South Consulting for The
Danish Centre for Human Rights (Copenhagen: Danish Centre for Human Rights, 2000) at 3.
996
Ibid., at 36.
997
See Englund, “The Dead Hand of Human Rights”, supra note 972, at 580.
998
Interview No. 19 with NGO, Malawi 2006. FSD2727. DFID had a programme called “Transform: Through
Rights to Needs for Marginalised Malawians (2001-2003)” that was suspended in 2003 at the request of
government. The main reason for closure was “an underestimation of the sensitivity of the project.” See Chris
Barnett et al., “Evaluation of DFID Country Programmes: Country Study Malawi 2000-2005”, April 2006, at 32.
Available at http://www.oecd.org/dataoecd/29/9/36721050.pdf, visited 15 May 2012.
151
However, looking at the legal framework and official discourse, human rights have been
defined in a rather narrow way in Malawi, with the primary focus on so called civil and
political rights. One of my informants explains:
The reception of human rights here after democratization was clearly a transition
first and foremost for political and civil rights. The excitement was on the
freedoms rather, … freedom of speech, association, to participate in politics, to
vote, to be voted into office, that was what the Malawians accepted that these are
the rights. Economic, social and cultural rights have somehow been a bit hidden,
they are there, we can talk about them but they are not as exposed as civil and
political rights. So when we go to the people and we ask which rights are you
concerned about they talk of those freedoms. Maybe because they were the rights
that were more suppressed during the authoritarian regime because it was very
strong on political participation, it tried its best to shot people out. Maybe that’s
why we are now in this stage, when we talk of economic, social and cultural
rights, do people appreciate and understand them?999
There has been efforts by certain NGOs and the Malawi Human Rights Commission to
include economic, social, and cultural rights in human rights discourse,1000 but also in the
context of these rights, focus has been on the ‘freedom side’ rather than the ‘entitlement side’.
To exemplify how a narrow understanding of rights as ‘freedoms’ has come to dominate
human rights discourse, Englund has analysed translations of human rights instruments from
English to Chichewa, the main local language in Malawi. That the Chichewa translation of
human rights as ‘birth freedoms’ (ufulu wachibadwidwe)1001 does not commit itself to the
entitlement aspect of human rights is particularly revealing in the case of economic and social
rights. The English translation of the Chichewa version of Article 22 of the Universal
Declaration of Human Rights (1948) reads as follows:
Everyone has the freedom to get assistance from the state when well-being is
undermined in accordance with the extent to which the state can assist, as well as
the freedom of economic activity and of what helps him/her to foster respect,
development in life and his/her humanity.1002
When compared with the original version of Article 22,1003 it is obvious that there is a
mismatch. Englund goes further and says that the translation fails to convey any “empowering
notion that could be deployed to challenge social and economic inequalities.”1004 Since few
Malawians have the opportunity to compare the texts they are given by civic educators with
the original, human rights discourse risks becoming an “alienating novelty and a
disempowering discourse.”1005 Through civic education and other human rights and
999
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1000
See e.g. The Malawi Human Rights Commission Bulletin Mfulu, of July 2006, with focus on economic,
social and cultural rights. Available at http://www.malawihumanrightscommission.org/docs/mfulu_july2006.pdf,
visited 15 December 2011. The theme of the MHRC on International Human Rights Day in 2006 was “fighting
poverty is an obligation, not charity”. Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi
2006. FSD2727.
1001
Englund, Prisoners of Freedom, supra note 414, at 22.
1002
Ibid., at 59.
1003
“Everyone, as a member of society, has the right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his dignity and the free development of his
personality.” Universal Declaration of Human Rights, UNGA res. 217 A (III) of 10 December 1948.
1004
Englund, Prisoners of Freedom, supra note 414, at 59.
1005
Englund, Prisoners of Freedom, supra note 414, at 60.
152
democratisation projects, well-meaning human rights groups used the notions of freedom,
democracy and human rights to confine the scope of what could be discussed.1006 This is
characteristic of a human rights discourse that, in the words of Jim Ife, defines rights for ‘the
powerless by the powerful’,1007 and where there is little input ‘from below’ since the agenda
has been set ‘from above’.
Englund’s critique of the human rights civil society in Malawi (as an elite movement
upholding the status quo and current power relationships in a manner that is depoliticising
human rights) has to be taken seriously, not the least because his findings are based on years
of ethnographic fieldwork and command of Chichewa.1008
3.1.3 Local reactions to official human rights discourses
Ulrika Ribohn, another ethnographer, who has studied the changes that the ‘freedom
discourse’ has brought about in Malawi, observes that during the Banda era relations between
categories of men and women, and political institutions were defined in ‘traditional’ terms,
stressing ‘traditional’ institutions. This has been redefined as the UDF government and
official human rights discourses having defined traditional ‘culture’ as violating human
rights.1009 However, people react against attempts to portray their ‘culture’ in these terms
(violator/violated). Ribohn has studied how ordinary Malawians continue to seek dignity and
respect through “culturally salient notions of what it entails to be a “good man” or a “good
woman”’. Her research shows how local values are excluded when human rights are
positioned in opposition to ‘traditions’.1010 Official arguments are interpreted locally as
attempts to change ‘culture’ in a top-down manner.1011
Ribohn’s starting point is that Malawians’ understanding of human rights is rather different
from the universal intentions of the United Nations. She sees a clash between the local
“manifestations of transnational agendas” and local reactions to these agendas. This clash is
particularly strong in relation to cultural values and women’s rights. The official human rights
discourses used by government organisations and so called civil society argue that cultural
values have to change in favour of human rights implementation.1012 My argument is that this
is what happens when human rights rhetoric is imposed from above, as ready-made concepts
defined by transnational legal documents and actors, without a meaningful dialogue about the
human rights concept itself.
Thoko Kaime, who has also done ethnographic research in Malawi, portrays a nuanced
picture of human rights principles, such as non-discrimination, in action in the lives of
children and adults in two villages in Thyolo district.1013 He finds that the principles of the
African Children’s Charter are not only based on children’s rights discourse but also on “an
1006
Englund, Prisoner of Freedom, supra note 414, at 10.
1007
Ife, Human Rights from Below, supra note 8, at 126.
1008
With regard to the criticism by Englund, Hans-Otto Sano asks whether the criticism can be generalised to the
majority of Malawian NGOs. Sano, “Does Human Rights-Based Development Make a Difference?”, supra note
55, at 67.
1009
For examples of the official rhetoric see e.g. article in The Malawi Human Rights Commission Bulletin
Mfulu, “Time is ripe to get rid of harmful cultural practices”, March 2006. Available at
http://www.malawihumanrightscommission.org/docs/mfulu_march2006.pdf, visited 15 December 2011.
1010
Ulrika Ribohn, ‘“Human Rights and the Multiparty System Have Swallowed our Traditions”: Conceiving
Women and Culture in the New Malawi”, in Harri Englund (ed.), A Democracy of Chameleons: Politics and
Culture in the New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 166-177, at 177.
1011
Ibid., at 175.
1012
Ibid., at 166.
1013
Kaime, “The Struggle for Context”, supra note 492, at 36.
153
eclectic mix of cultural, religious and spiritual agreements. Consequently, non-discrimination
perspectives are not the preserve of ‘ajenda’ or human rights advocates alone but also that of
ordinary people who claim no special knowledge of children’s rights.”1014 Kaime underlines
the importance of “existing cultural logics and categories in the acceptance or rejection [...] of
introducing ‘new’ principles”. Kaime’s research suggests that people seek ways of
“combining their conceptions of family practice and children’s rights norms”, and in this
process, “they not only redefine their cultural landscape but also redefine the international
children’s rights corpus itself.” He advises to not essentalise “culture or children’s rights as
constituting strict categories”. Instead he calls for practices in which children’s rights are not
formulated as abstract forms but located in “specific, concrete experiences derived from the
lives of children and their families.”1015 Ribohn’s research suggests that ‘culture’ has been
given a static and essentialised meaning by authorities and villagers in Malawi,1016 and maybe
that is why there seems to be such a sharp clash between ‘culture’ and official human rights
discourses. Kaime’s research suggests that there does not need to be a clash between these
two worlds if only mutual redefinition is allowed and accepted.
3.1.4 Civic education
The main method of introducing international human rights into the consciousness of
Malawians has been awareness raising and human rights education. The assumption has been
that if people only knew their rights they would start claiming them.1017 So called civic
education has been seen as a way to “enlightening ordinary men and women about their
rights, responsibilities and duties in relation to their government, with special emphasis on
their rights and freedoms vis-à-vis government authority and power.”1018 In practice, it has
been NGOs rather than government institutions that have carried out civic education
activities.1019
In 1994, Amnesty International reported that “human rights activists are launching a human
rights training program for Malawi with a symposium”, organised by the Malawi Public
Affairs Committee and funded by AI. Participants included religious leaders, human rights
groups, and lawyers. The symposium was a first step towards a national training workshop for
human rights educators.1020 The strong focus on human rights education has later been
criticised for having had limited impact also from within the civil society human rights
movement itself: “All what the NGOs have done is to preach the language of rights and they
have done that in the context of sensitization of the communities, rights education. It has been
1014
Kaime, “The Struggle for Context”, supra note 492, at 43.
1015
Kaime, “The Struggle for Context”, supra note 492, at 65-66. Emphasis added.
1016
Ribohn, ‘“Human Rights and the Multiparty System Have Swallowed our Traditions”’, supra note 1010, at
170.
1017
The following extract from an interview in Mfulu, the Malawi Human Rights Commission Bulletin,
exemplifies this assumption: “The only way to stop human rights abuses against women is to have them
empowered with knowledge of their rights and to enact legislation that can address loopholes that expose women
to abuse.” “Poverty and illiteracy block women empowerment” in Mfulu, of July 2006, at 2. Available at
http://www.malawihumanrightscommission.org/docs/mfulu_july2006.pdf, visited 15 December 2011.
1018
Ralph Kasambara, “Civic Education in Malawi Since 1992: An Appraisal”, in K. M. Phiri & K. R. Ross
(eds), Democratization in Malawi: A Stocktaking (Blantyre: Christian Literature Association in Malawi, 1998)
237-251, at 237.
1019
Ibid., at 251.
1020
Amnesty International, News service: “Malawi – Human Rights Symposium”, 1 August 1994. AI Index AFR
36/WU 05/94. Available at www.amnesty.org, visited 14 May 2012.
154
in a context of preaching the word, like preachers standing on a podium.”1021 Having the role
of passive listeners taking in knowledge from outside experts is not very empowering.
Englund has analysed civic education on human rights and democracy carried out by the EU
funded project National Initiative for Civic Education (NICE) in Malawi. His findings
exemplify the challenges experienced by human rights awareness raising. In the civic
education meetings the officers explained about multiparty democracy and its ‘cornerstones’:
tolerance, citizens’ participation, free and fair elections, human rights, the rule of law, and
transparent leadership. There was no attempt to find out to what extent these so called
cornerstones resonated with the experiences of the people present at the meeting. The
participants were expected to accept them as given definitions. The implied message was that
the transition from the one-party regime of the MCP, that ended not many years before NICE
entered into the country, had already taken place.1022
Englund’s research questions the transformative role of so called civil society, a potential role
that was celebrated in the early 1990s by numerous observers of African politics. The
enthusiasm of the 1990s has faded and more critical accounts have emerged, highlighting the
problems with overly romanticised notions of the role of civil society.1023 Moreover, in
Malawi there was an influx of NGOs in 1993-94, more particularly human rights NGOs.1024
Malawi churches, that played a central role in the removal of the Banda regime, remained
relatively active in Malawian politics also after the transition to a multiparty government.1025
The Church and NGOs have worked so closely together on human rights issues that they, in
some cases, have become virtually indistinguishable.1026 Churches have been part of the ‘civic
education movement’, but research shows that there were significant limits to their grassroots
civil society activism.1027 Peter VonPopp draws the conclusion that churches, at the
grassroots, “may very well be agents of the status quo, rather than advocates for change in
state-local power relations.”1028 This is a relevant conclusion when reviewing the Right to
Food Project, which was initiated by a church-based human rights organisation.
It is not only civil society organisations that have conducted civic education on democracy
and human rights. Institutions such as the Ombudsman and the Malawi Human Rights
Commission also have ‘public awareness’ on their agendas. Again, the Danish Centre for
Human Rights (DCHR) has been a major funding agency. With money from the DCHR the
Ombudsman Office conducted workshops aimed at District Development Committees, and
District Executive Committees (DEC); workshops with civil servants in ministries, military
and the police; workshops for the media; a workshop with Principal Secretaries and Judges
during the period of 1996-2000.1029 In an evaluation report, lack of training in law and human
rights among the staff of the Ombudsman Office itself was, however, noted as a major
1021
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1022
Englund, Prisoners of Freedom, supra note 414, at 108.
1023
Peter VonDoepp, “Are Malawi’s Local Clergy Civil Society Activists? The Limiting Impact of Creed,
Context and Class”, in Harri Englund (ed.), A Democracy of Chameleons: Politics and Culture in the New
Malawi (Uppsala: Nordiska Afrikainstitutet, 2002) 123-139, at 123.
1024
Interview No. 29 with Malawi Resource Center for Human Rights, Malawi 2006. FSD2727.
1025
See also Englund, “The Dead Hand of Human Rights”, supra note 972.
1026
Ibid., at 586.
1027
VonDoepp, “Are Malawi’s Local Clergy Civil Society Activists?”, supra note 1023, at 123-124.
1028
Ibid., at 137.
1029
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi (Copenhagen, Danish Centre for
Human Rights, 2000) at 71.
155
problem. Of all staff members employed at the time of evaluation, only the Ombudsman
himself and Chief Legal Officers had legal qualifications.1030
It seems that the agencies that have been funding most of the human rights related activities in
Malawi since the transition to multiparty governance are eager to support the growing interest
in freedoms, ufulu. There is, however, concern for the lack of capacity and knowledge in
international human rights standards – and more training for the staff of the institutions and
civil society organisations on the legal dimension of human rights as well as more ‘civic
education’ for the general public has been seen as the solution. There has been less discussion
on how feasible it is to adopt a legalistic understanding of the human rights concept in a
country such as Malawi, with about 500 lawyers and a large, largely rural population with
little official schooling. Initiatives that would investigate the intersection between everyday
lived realities and human rights, calling for human rights as cultural practice located in
specific local contexts, are rare.
3.1.5 The right to food in the legal framework of Malawi
Chirwa writes that “[e]conomic, social and cultural rights have suffered from lack of
constitutional protection in Malawi since colonial times.”1031 The first written Constitution,
adopted in 1964 at the time Malawi gained independence from Britain, included no socio-
economic rights. The 1964 Constitution did guarantee civil and political rights and the right to
property. Two years later, it was replaced by a second constitution, designed to transform
Malawi into a republic. In the 1966 Constitution, human rights were only mentioned in
passing in section 2(1)(iii) that included a reference to the UDHR. However, in 1968 there
was already a constitutional amendment stating that “nothing in or done under the authority of
law shall be held inconsistent with or in contravention of the Universal Declaration of Human
Rights”.1032 This lasted until 1992 when the first litigation invoked the provision under the
UDHR. In the Chihana v. R case1033 the Supreme Court held that the UDHR forms part of
Malawian law (referring to the 1966 Constitution). The case was about alleged interference
with the freedom of speech as a violation of the African Charter of Human and People’s
Rights. The court held that the UDHR is part of the law of Malawi, while the African Charter
is not (because Malawi has taken no legislative measures to adopt it).1034 Since this
Constitution of 1966 was repealed, and the 1994 Constitution does not make any reference to
the UDHR; some writers argue that the UDHR is no longer part of Malawian law.1035
The 1994 Constitution includes a Bill of Rights, which recognises the right to family
protection, the right to education, cultural and language rights, the right to property, the right
to economic activity, labour rights, and the right to development.1036 As we can see, the right
to food is not on this list. The right to development does, however, provide a potential, but yet
1030
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi, supra note 1029, at 52.
1031
Danwood Mzikenge Chirwa, “A Full Loaf is Better than Half: The Constitutional Protection of Economic,
Social and Cultural Rights in Malawi”, 49 Journal of African Law (2005) 207-241, at 208.
1032
Act No. 6 of 1966, introducing section 2(2) to the Constitution, as cited in Chirwa, “A Full Loaf is Better
than Half”, supra note 1031, at 209.
1033
Chakufwa Tom Chihana v. Republic, MSCA Criminal Appeal no. 9 of 1993. Chihana was a famous political
dissident. See Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 10.
1034
Thomas Trier Hansen, “Implementation of International Human Rights Standards Through the National
Courts in Malawi”, 46 Journal of African Law (2002) 32-42, at 37.
1035
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 209 and 234.
1036
Constitution of the Republic of Malawi, 1994, adopted 17 May 1995.
156
unexplored, avenue for protecting many of the socio-economic rights, including the right to
food, not expressly mentioned in the Bill of Rights.1037
Section 30 reads:
1. All persons and peoples have a right to development and therefore to the
enjoyment of economic, social, cultural and political development and women,
children and the disabled in particular shall be given special consideration in the
application of this right.
2. The State shall take all necessary measures for the realization of the right to
development. Such measures shall include, amongst other things, equality of
opportunity for all in their access to basic resources, education, health services,
food, shelter, employment and infrastructure.
3. The State shall take measures to introduce reforms aimed at eradicating social
injustices and inequalities.
4. The State has a responsibility to respect the right to development and to justify
its policies in accordance with this responsibility.
This section is interesting from many perspectives. First, it refers to “women, children and
disabled” as groups to be given special consideration in the application of the right to
development, indicating that their vulnerability calls for special measures. Second, there is no
reference to ‘progressive realisation’ and ‘available resources’ as is the case of state
obligations under the ICESCR, to which Malawi is a party.1038 Instead it is stated that “the
State shall take all necessary measures for the realization” of this right, which potentially
implies far-reaching positive obligations. Third, an element of equality and non-
discrimination (expressed as “equality of opportunity”) enters in relation to access to basic
resources, including food and employment. Forth, positive measures (‘reforms’) aiming at the
“eradication of social injustices and inequalities” again gives the impression of extensive
positive obligations on the part of the state. Lastly, the state has to justify its policies in
accordance with the responsibility to respect the right to development.
All of the sub-paragraphs, and especially the last one that refers to policy coherence, are
powerful statements. It is surprising that civil society groups have not made use of Section 30
in their advocacy or litigation efforts. (“Again in the past years the least attention has been on
Section 30 of our Constitution which is the right to development in the broadest sense. I don’t
recall any grouping testing that provision of the Constitution out.”)1039 This is partly explained
by a conservative Supreme Court: the majority of the judges do not view economic and social
rights to be justiciable and the major focus of the judiciary since 1994 has been on civil and
political rights.1040
Chirwa argues that section 30(2) can be regarded as guaranteeing access to basic resources
such as food, and he refers to the Supreme Court’s view in Gwanda Chakuamba & Others
that “human rights provisions in the Constitution should be construed broadly and
purposively.”1041 Section 30 shows that positive obligations and entitlements are not
1037
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 224-225.
1038
Malawi ratified the ICESCR in 1994 but has not yet submitted its first periodic report.
1039
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1040
Dan Banik, “Human Rights for Human Development: The Rhetoric and the Reality”, 30 Nordic Journal of
Human Rights (2012) 4-35, at 30-31.
1041
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 225. Referring to the case Gwanda
Chakuamba & Others v. The Attorney General & Others, M.S.C.A. Civil Appeal no. 20 of 2000.
157
completely absent in Malawi, only marginalised both in the legal framework and in the
popular human rights rhetoric that has focussed on ‘freedoms’.
3.1.6 Concluding remarks
Civic education has been the main mode of ‘sensitising’ the Malawian public to issues such as
human rights and democracy. In civic education, participants are expected to take ‘human
rights’ as given concepts and therefore there has been very little dialogue about the meaning
and value of human rights. Introducing human rights as expert knowledge imposed ‘from
above’ (by the powerful for the powerless1042) in a country that recently has changed from an
authoritarian regime to a multiparty form of government is not very respectful of the lived
realities of the actors involved. In the best case, such practices are only isolated examples of
bad pedagogy.
The role of donors as supporters of ‘freedoms’ is somewhat unclear, but it seems that they
have been eager to support civic education as well as legal capacity building for the
authorities.
Although ESC rights are marginalised in the discourse as well as in the legal framework,
Section 30 of the Constitution, which guarantees the right to development, is surprisingly
strong, underlining the entitlement dimension and positive obligations, i.e., issues that have
been given less attention in the official ‘freedom discourse’. Why civil society actors have not
used Section 30 more in advocacy is unclear.1043 This shows that a legal approach to food
insecurity, in which claims would be based on legal rights, is not developed. There is no
conscious effort to put legislation, policy, and practice in place that would support the
realisation of the right to adequate food. Before analysing whether the Right to Food Project
fills this gap I will explore the role of human rights in the development community’s
conventional approach, i.e., providing food assistance to needy beneficiaries.
3.2 Food assistance: A charity-based service
This section is an analysis of one particular food assistance programme in Malawi
implemented by the World Food Programme (WFP)1044 and its NGO partners. The purpose is
to identify the role of human rights and to understand the principles according to which food
assistance programmes are managed, not to evaluate the effectiveness in reaching the intended
beneficiaries. What role, if any, is the right to food playing? Is food assistance seen as a
service that is a matter of fulfilling the obligations under the right to food (i.e., providing a
mandatory service to rights-holders who have been selected based on clearly defined criteria)
or as charity (i.e., a favour that may or may not be provided to beneficiaries based on more or
less arbitrary criteria)? Emphasis is also put on understanding the role and meaning of the
‘good development practice’ principles of non-discrimination, accountability, participation,
and empowerment.
1042
See Ife, Human Rights from Below, supra note 8, at 126. Ife claims: “Human rights remain largely a
discourse of the powerful about the powerless, and this is itself a human rights abuse: a denial of the right to
define one’s rights.”
1043
In 2012 I was told that NGOs are working towards a test case concerning socioeconomic rights. E-mail
interview with Church and Society, August 2012.
1044
Food aid distributed by the WFP reaches about 100 million people worldwide annually. Food and
Agriculture Organization of the United Nations, The State of Food and Agriculture 2006: Food Aid for Food
Security? (Rome: FAO, 2006) at 4.
158
3.2.1 Introduction
We occasionally feed people when they run out of stocks. And for some this is a
yearly event. We make up the four months that people come short. Every year
about 25 percent [of the Malawians] are chronically food insecure, so those are
always there. There’s always need, but that’s controllable need.1045
Food aid has been an important part of international development cooperation and
humanitarian aid since the post-Second World War Marshall Plan.1046 It is thereby one of the
oldest forms of foreign aid – and at the same time one of the most controversial. This is
mainly because food aid involves issues of trade and agricultural policy in donor as well as
recipient countries, but also because some development specialists have worried that food aid
can destabilise local markets, create disincentives for producers and traders, and undermine
the resilience of food economies. In a world that, in theory, produces more than enough food
to feed everyone, nothing seems more obvious than giving food to hungry people, but yet this
apparently benevolent response has attracted extensive criticism.1047 The purpose of this
chapter is not to review evidence for or against any of these arguments, but it is important to
be aware that food aid is far from unproblematic.
The WFP is one of the few UN agencies that has not adopted a so called human rights-based
approach – despite former Secretary General Kofi Annan’s request in 1997 to integrate human
rights into all activities of the organisation.1048 One reason for this might be the general
tendency in food aid to adapt to immediate needs and ‘practical problems’ as they emerge.1049
Service delivery (food commodities), where targeting is based on needs, is characteristic of
this approach: “Food will be targeted at the right time to the neediest countries, to the neediest
populations in food-insecure areas (geographic targeting) and to intended beneficiaries.”1050
This quote demonstrates the simple logic behind food aid in general and the existence of the
WFP in particular; in times of crisis, food will be distributed to those most in need of
assistance (the most vulnerable households) so that they can live through the crisis and
hopefully recover. The objective is to save lives.1051 In Malawi, disasters have become annual
events and even in a year with an exceptionally good harvest, which was the case in 2006,
there were areas where people suffered from hunger.1052
In order to limit the scope of the analysis, focus is placed on the Joint Emergency Food Aid
Programme (JEFAP). This programme was initiated during the food crisis of 2002/2003 by
the Government of Malawi, donors, the WFP and NGOs.1053 In late 2006, at the time that I
was conducting field research, there were three programmes under the JEFAP: (1) HIV/AIDS
programme where food was distributed to households with chronically sick patients or
1045
Interview No. 30 with donor, Malawi 2006. FSD2727.
1046
Edward Clay and Olav Stoke, “The Changing Role of Food Aid and Finance for Food”, in E. Clay and O.
Stokke (eds), Food Aid and Human Security (London: European Association of Development Research, 2000)
13-54, at 17.
1047
FAO, The State of Food and Agriculture 2006, supra note 1044, at 3.
1048
See “Renewing the United Nations: A Programme for Reform”, 14 July 1997. UN doc. A/51/950.
1049
Clay and Stoke, “The Changing Role of Food Aid and Finance for Food”, supra note 1046, at 17.
1050
World Food Programme, Executive Board Second Regular Session, Consolidated Framework of WFP
Policies, An Updated Version, Rome 22-27 October 2007, para. 11. Available at http://www.wfp.org/
sites/default/files/wfp137486~2.pdf, visited 14 May 2012.
1051
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006; Interview
No. 4 with WFP, Malawi 2006. FSD2727.
1052
The maize production in 2006 was 113 percent higher than the previous season. See UN Malawi
Humanitarian Situation Report, July 2006. Available at http://www.unmalawi.org/reports/Sit_reports/
UN_SitRep01Aug2006.pdf, visited 10 May 2012.
1053
WFP/NGO Partnership, Malawi, November 2006.
159
orphans; (2) food-for-asset (FFA) programmes where community members created assets in
return for food; (3) targeted food distribution for asset creation to help those lacking food over
the ‘hunger months’.1054 The emergency intervention in 2006 was small-scale (targeting about
one million people) compared to the foregoing season of 2005/06 when five million
Malawians where missing food entitlements.1055 Moreover, the WFP in Malawi was also
implementing a long-term school feeding programme and a therapeutic feeding programme
for malnourished children.1056 In the following, focus is placed on the food-for-asset
programmes. During the field research in Malawi I met with WFP staff, NGOs, the major
donors to the WFP and with government representatives.
3.2.2 Food aid as part of the right to food
In order to understand the role of human rights in food assistance programmes, we must first
establish what human rights law says about food aid. Do people suffering from hunger have
not only a moral but also a legal right to receive support? As we know the right to adequate
food is guaranteed in Article 11 of the ICESCR,1057 but this article is silent on food aid. The
Committee on Economic, Social and Cultural Rights has, however, in General Comment No.
12 on the Right to Adequate Food made clear that the obligation to fulfil (provide) means that
State Parties to the Covenant should provide directly for this right whenever an individual or
group is unable, for reasons beyond their control, to enjoy the right to food. The Committee
then refers to victims of natural or other disasters.1058 The Special Rapporteur on the right to
food states that it may be necessary, as a last resort, for governments to provide direct
assistance to those in need through safety nets such as food voucher schemes or social
security provisions to ensure freedom from hunger.1059 Food aid is, in other words, one way
for a government to fulfil its minimum obligations under the right to food.
The State is in violation of the Covenant if it fails to ensure the satisfaction of, at the very
least, the minimum essential level required to be free from hunger. Should the State’s
resources not be sufficient, it has to seek international support to ensure the availability and
accessibility of the necessary food.1060 The primary responsibility to prevent famine and
hunger always rests with national governments, but all other governments should, according
to the Special Rapporteur, refrain from taking action that cause food insecurity and to respond
to requests for emergency assistance.1061 There is, however, no agreement among states that
there is a legal obligation to provide food aid and the matter remains controversial.1062 It is
important to keep in mind that food aid is also legally regulated in other instruments, which
are unrelated to human rights law. For example, States Parties to the Food Aid Convention
1054
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1055
In December 2005 the Malawi Vulnerability Assessment Committee (MVAC) released its final figures,
which indicated that there had been an increase in the population at risk from 4.2 to 5 million. See Malawi
Humanitarian Situation Report by the UN Disaster Management Technical Working Group, December 2005.
Available at http://www.unmalawi.org/reports/Sit_reports/UN_SitRep8dec2005.pdf, visited 10 May 2012.; See
also UN Malawi Humanitarian Situation Report, supra note 1052. Interview No. 4 with WFP, Malawi 2006.
FSD2727.
1056
Interview Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1057
Malawi ratified the ICESCR in 1994.
1058
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
1059
Report of the Special Rapporteur on the right to food, Jean Ziegler, 16 March 2006, para. 24. UN doc.
E/CN.4/2006/44.
1060
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para 17. See also Report of
the Special Rapporteur on the right to food, supra note 1059, para. 37.
1061
Report of the Special Rapporteur on the right to food, supra note 1059, para. 18.
1062
See Lorenzo Cotula and Margaret Vidar, The Right to Adequate Food in Emergencies (Rome: FAO
Legislative Study 77, 2003) at 22-23.
160
“agree to provide food aid to developing countries or the cash equivalent thereof” in annual
amounts specified in the Convention.1063
The Committee on ESCR has expressed concern about the possible negative effects of food
aid. According to General Comment 12, international emergency assistance in the form of
food aid is to be provided in ways which do not adversely affect local producers and local
markets, and should be organised in ways that facilitate the return to food self-reliance of the
beneficiaries, and products included in international food trade or aid programmes must be
safe and culturally acceptable to the recipient population. Moreover, food aid should be
distributed based on the needs of the intended beneficiaries,1064 indicating that focussing on
needs is not alien to human rights thinking. The fact that the Committee, which has authority
to interpret the Covenant, refers to these issues underlines that the implementation of food aid
is a matter of human rights.
Clearly, guaranteeing that food is available also during crises situations is part of the human
rights obligations of the Government of Malawi. The questions is whether the authorities in
Malawi have accepted that food assistance activities (that are presently called ‘humanitarian
aid’ or ‘development’, depending on the type of intervention) are part of a human rights
agenda. Traditionally, there has been a clear distinction between humanitarian assistance work
and human rights work. For instance George Kent draws this line in saying that “humanitarian
assistance is mainly about service delivery, while human rights work is mainly about
advocacy in relation to governmental actions.”1065 As an example Kent mentions that when a
charitable organisation gives food to the poor this is humanitarian assistance, not human
rights work. If the same organisation is pressing the government to act on the problem, it is
doing human rights work. He adds that the task of human rights work is to ensure the
fulfilment of the government’s obligations in respect of support to the needy.1066 In Malawi
food assistance has been the government’s way of supporting ‘the needy’ (although the
motivation has been political and not related to human rights obligations). At least in theory,
the WFP and NGOs are implementing this service on behalf of the government. Therefore,
the strict line between humanitarian assistance and human rights work is difficult to maintain.
Food assistance has a human rights dimension as it is one way of guaranteeing the right to
food to those who are unable to realise this right through other means. Then of course it can
be debated whether food assistance is the most appropriate way to fulfil the ‘provide
obligation’ under the right to food.
A related question is whether the ‘international relief industry’ is designed in such a way that
the role of the national government is sidestepped. It is difficult to deny that the fact that as
donor governments often channel emergency funds through UN agencies and NGOs this has
an effect on the possibilities for the national government to live up to its human rights
obligations. This also has implications for the process of citizens holding the government
accountable, through democratic processes, for failures to respond to food crises. Alex de
Waal points out that the establishment of ‘disaster institutions’ at the UN (e.g. the WFP) has
contributed to the internationalisation of responsibility for famines (implying the retreat from
1063
Food Aid Convention, 1999, Art. IIIa. See also Cotula and Vidar, The Right to Adequate Food in
Emergencies, supra note 1062, at 31.
1064
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 39.
1065
Kent, Freedom from Want, supra note 83, at 124.
1066
Kent, Freedom from Want, supra note 83, at 124-125.
161
domestic accountability). Another side effect of foreign-run relief programmes is that they
often undermine the legitimacy of government efforts in the eyes of the public.1067
Food distribution in Malawi in 2006 was very much in the hands of donors, international
agencies and NGOs, although there was an effort to strengthen the role of the government. A
donor stated: “Last year we tried to make sure that it was the government that was owning the
food distribution. Half of the distribution was done through WFP and half through the
Department of Poverty and Disaster Management with NGOs. They were working the same
way, it was just two different channels. It was to build capacity in the government, so that
they can handle on their own the food security problems.”1068 Since donors and international
development agencies have a leading role in the organisation of food assistance it also means
they have to live up to the principles set out in General Comment 12.
3.2.3 The new food aid agenda: No free food
The methods used in food aid have changed over time in Malawi as well as elsewhere.
Distributing free food is not ‘trendy’ any longer. What used to be food-for-work, mainly road
construction, became FFA, i.e., construction of small-scale irrigation, fish-ponds etc in
exchange of food items. Some donors were also increasingly interested in cash transfers
instead of food (conditional cash transfers where people work).1069 The ambition in the FFA
programmes was to link the distribution of food commodities to asset creation and to
livelihoods. The beneficiary worked 20 days in one month for four hours a day.1070 The food
basket that was received in FFA programmes after one month’s work was 50 kg of maize, 5
kg of pulses and 2 litres of cooking oil.1071 There is no question that the level of payment was
low. The programmes were nevertheless very popular and people stood in line at registration.
In rural Malawi the opportunities to make some money are limited or none existent. “They
have an option to food-for-asset work and get a bag of maize or sorghum that can feed their
family for one month. Or they have the option to work for 30 cents a day if they’re lucky.”1072
It is true that the wage level in Malawi was and still is extremely low, and everyone who is
‘better off’ benefits from this in terms of cheap labour. Increase in the supply of casual labour
(ganyu) has depressed rural wages.1073 It is also true that through the FFA programme, people
in urgent need of food obtained it in return for work on something that was supposed to
contribute to agricultural production and therefore, in the long run, contribute to long-term
1067
Alex de Waal, Famine Crimes: Politics & Disaster Relief Industry in Africa (Bloomington: Indiana
University Press, 1997) at 70, 79, 137.
1068
Interview No. 3 with donor, Malawi 2006. FSD2727. An international evaluation report writes that “The
decision to make use of an alternative food distribution channel through the Government Voucher Scheme, side
by with the usual food aid distribution by WFP, and the subsequent decease of the WFP distribution charge, has
given rise to major reduction in the total costs of the food aid distribution.” The evaluation team further observes
that “the Government is eager to increase its responsibility into the area of food aid distribution”. See The
European Union’s Programme for Malawi, “Comprehensive Review of Stakeholders Response to the 2005/2006
Food Insecurity”, Final Report, September 2006, at 6.
1069
See Nita Pillai, “Food Aid for Development? A Review of the Evidence”, in E. Clay and O. Stokke (eds),
Food Aid and Human Security (London: European Association of Development Research, 2000) at 196-220.
1070
One NGO that I interviewed expressed that four hours a day is too much considering that this person also
needs to take care of his own fields. If a beneficiary is absent for two days he has to make for that. Interview No.
33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
1071
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1072
Interview No. 18 with WFP, Malawi, 2006. FSD2727.
1073
Eunice G. Kamwendo, “Knowledge Review and Gap Analysis: Hunger and Vulnerability in Malawi”, a
report by Regional Hunger and Vulnerability Programme, July 2006, at 6. Available at http://www.wahenga.org/
news/news_item.php?news=88, visited 6 June 2008.
162
development.1074 If it was not for food assistance programmes people would migrate to other
areas looking for food.1075 FFA programmes helped to alleviate the worst symptoms of
chronic poverty. However, it is easy to criticise them for hindering the same structures that
keeps the poor in poverty, that is, low wages.
The basic idea in FFA was that people should not just ‘receive free food’, because it was
feared this would create ‘dependency’,1076 and as we remember the General Comment on the
Right to Adequate Food makes clear aid should be organised so that food self-reliance of the
beneficiaries is ensured. One donor representative motivated this shift to food-for-asset
programmes by saying: “To get the participation by the people, to get them understand why
they are helped and not only receiving things. They have also to give something. That’s why
there are very few programmes where there is distribution for nothing.”1077
In most of my interviews a ‘hand-out mentality’ was mentioned as a widespread problem in
Malawi. Due to this ‘hand-out mentality’ it was perceived to be challenging to get a real
understanding in the communities that the FFA is an asset creation programme as much as it
is one addressing hunger. (“Everybody thinks they have a right to the food because the
government gives food every year.”1078) This brings us to the question whether the people
receiving food assistance saw themselves as subjects of charity or as rights-holders who can
demand accountable services from the duty-bearers. Food assistance is a service that, in
theory but not in practice, is a matter of fulfilling obligations under the right to food.
Therefore, people receiving assistance could potentially be in a position to make claims and
hold people in authority to account for the way food distribution is handled. This was,
however, seldom the case and it is doubtful that the ambition was to move into that direction.
I come back to the issue of demanding accountable services in the analysis of the rights-based
approach to food security.
In her investigation of the return of soup kitchens and food pantries in the early 1980s in the
USA, Janet Poppendieck puts forward the argument that the kind of charity where free food is
distributed to poor people is “a retreat from rights to gifts. Poor people might be, and often
are, very well treated in charitable emergency food programs, but they have no rights, at least
not legally enforceable rights, to the benefits that such programs provide.”1079 As long as
Malawian authorities do not view food assistance as a rights-based service, regulating it as
such, food distribution activities are part of a human rights agenda only in theory. For these
reasons I label food assistance in Malawi a charity-based service.
1074
The benefit of the assets created is sometimes contested. It is argued that, since unqualified labour is used,
there is risk that the quality of the assets may be low and little provision is made for their maintenance and
repair. In addition, simple technical solutions such as small-scale irrigation or water harvesting need
maintenance, something that is often not available in rural Malawi. See Anna McCord, “Win-win or lose? An
Examination of the Use of Public Works as a Social Protection Instrument in Situations of Chronic Poverty”,
paper presented at the Conference on Social protection and Chronic Poverty, University of Manchester, February
2005. Available at http://www.sed.manchester.ac.uk/research/events/conferences/documents/Social%20
Protection%20Papers/McCord.pdf, visited 10 May 2012.
1075
Interview No. 33 with NGO that is member of JEFAP, Malawi 2006. FSD2727.
1076
There is a big debate among scholars and organization whether food aid in fact creates ‘dependency’. Some
argue that the quantity of food aid is usually too small and the timing too unpredictable to encourage households
to rely on it. FAO, The State of Food and Agriculture 2006, supra note 1044, at 35. See also Erin C. Lentz and
Christopher B. Barret, “Food Aid and Dependency: Implications for Emergency Food Security Assessments”,
WFP, December 2005. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1142287, visited 10
May 2012.
1077
Interview No. 3 with donor, Malawi, 2006. FSD2727.
1078
Interview No. 18 with WFP, Malawi, 2006. FSD2727.
1079
Poppendieck, Sweet Charity?, supra note 551, at 12.
163
3.2.4 Good development practice
Objective to target the most vulnerable through a participatory process
In addition to cultural acceptability and quality of the food commodities, principles of non-
discrimination and a focus on the most vulnerable, participation, accountability and
empowerment are very much on the agenda in food assistance. In this section I analyse the
meaning of these ‘good development principles’, starting with non-discrimination and
participation, that are highly interrelated.
Non-discrimination and impartiality do not imply that food assistance is to be distributed
equally to all individuals, but rather that it has to be distributed only on the basis of need,
regardless of any other consideration.1080 Therefore, this principle is most visible in the
selection of beneficiaries. Only the most food insecure households are being targeted in the
JEFAP programmes. “A household has to indeed be vulnerable, that they don’t have food,
don’t have livestock that they can sell and get food, that they don’t have relations that can
support them during this time.”1081 As we recall from previous sections, in the vulnerability
assessments carried out in the area of food security, discrimination experienced by people is
not a factor that is analysed. Vulnerability assessment is about identifying needs and making
sure there is no discrimination in the targeting process – but less about using discrimination
and marginalisation as a lens for analysis.
The identification of beneficiaries for FFA programmes and for targeted food distribution for
assets started with the report from the Malawi Vulnerability Assessment Committee (MVAC)
that indicated the deficit areas in terms of food.1082 After the tonnages needed in each area that
had been pointed out as food insecure had been established, the WFP and NGOs had a
meeting with the District Executive Committee to evaluate whether the MVAC report was
correct in its assessment of the food security situation in the particular district. As a second
step there was another meeting at the Traditional Authority level (with local traditional chiefs
as well as NGOs and CSOs active in that authority) where the WFP provided information
about the amount of food available for distribution and asked about the development priorities
set in the Traditional Authority so that the asset to be created by those participating in the
programme would be useful and linked to livelihoods. The aim was to identify the particular
villages that were more affected by hunger this year compared to normally.1083 As a third step
there was a meeting with the group village headmen and the village development committee
to collect data on how many households that group headman had and how many households
were vulnerable. (Note that there was no vulnerability assessment carried out, but instead the
group village headmen and the village development committee made these decisions.) The
village development committee then gave the NGO a list of names of vulnerable households
and the role of the NGO was to do random verification to check that these households were
indeed in need of food. It was the village development committee members that finally
performed the registration of the beneficiaries.1084 The role of the NGO was to sensitise the
1080
Cotula and Vidar, The Right to Adequate Food in Emergencies, supra note 1062, at 51.
1081
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1082
The MVAC is regularly forecasting vulnerability to hunger. It is made up by relevant ministries (chaired by
the Department of Poverty and Disaster Management Affairs), UN agencies and NGOs. Overall the trust in the
accuracy of the MVAC report seems to be high among all stakeholders but one NGO was questioning its
reliability.
1083
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1084
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006; Interview No. 18 with
WFP, Malawi 2006; Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
164
committee on the criteria for targeting the beneficiaries.1085 What should be noted was that the
village development committee was common for a group of villages. With regard to one
specific village, the structure was not explicit as to what happens.1086 Some villages had
organised sub-committees such as village relief committees or village food committees that
would manage the process, but this was not the case in all villages.
In a situation where the majority of the people in rural areas are poor, targeting is a great
challenge. Although humanitarian programmes usually cover 100 percent of the food
requirements as identified in the report by the MVAC, the situation on the ground may be that
households who are vulnerable were still left out. The difference between households being
targeted and those left out was often very small.1087 (“It is challenging for us to find ourselves
targeting vulnerable people but at the same time leaving out as well vulnerable people.”1088) It
was unclear from my interviews how transparent and accessible the selection criteria were for
the beneficiaries themselves. The risk is that the targeting process feels arbitrary in the eyes of
the community members, if the criteria for becoming selected for the programme are not
clearly defined beforehand. Another problem in terms of targeting was that the food security
situation of the urban poor was not assessed by the MVAC. This meant that there might have
been urban poor in need of assistance but the government could not provide this because of
lack of information that could have helped in the targeting process.1089 This was clearly a
matter of failing to live up to the right of non-discrimination.
With regard to women as a potentially ‘vulnerable group’, I was told that the WFP aimed at
high participation by women in food-for-asset activities. As put by one NGO: “Our
requirement is that at least we should have 70 percent women”.1090 I was not, however, given
any information on the kind of vulnerability analysis used to arrive at this decision.
As we know, ‘participation’ in development can mean different things depending on the
context and the actors involved. In development policy, participation is often framed narrowly
as a means to improve project performance, rather than a process of fostering critical
consciousness and decision-making.1091 ‘Participatory processes’ can mean fostering dialogue
between different stakeholders, or that these are involved in the different phases of the
programme. Sometimes the voluntary contribution by people in projects is seen as
‘participation’ (communities contributing time and effort to self-help projects with some
outside assistance).1092 This was not the case in JEFAP programmes in Malawi, or at least
nobody I interviewed suggested that since people were working before getting food this meant
it was a ‘participatory process’. Rather, statements such as “there’s good participation”1093
suggest that participation was seen as something that is necessary for a successful programme,
that is needed in order for the beneficiaries to ‘own’ the activities (and thereby sustain the
1085
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1086
Interview No. 32 with NGO that is not a member of JEFAP, Malawi 2006. During my interviews with NGOs
I was given differing information as to what happens in one village. This shows that the processes vary from one
village to another.
1087
Interview No. 4 with WFP, Malawi 2006; Interview No. 21 with Department of Poverty and Disaster
Management Affairs, Malawi 2006. FSD2727.
1088
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1089
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1090
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. WFP also indicated that
they prefer that the woman in a household collects the food. Interview No. 4 with WFP, Malawi 2006. FSD2727.
1091
VeneKlasen, Miller et al., Rights-Based Approaches and Beyond, supra note 836, at 5.
1092
Mikkelsen, Methods for Development, supra note 147, at 53-54. According to Englund there is a general
trend in Malawi to call for greater input in development projects by communities in the name of ‘participatory
methods’. See Englund, Prisoners of Freedom, supra note 414, at 100.
1093
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
165
assets that are being created with the help of food assistance). The ambition in FFA
programmes was that the selection of beneficiaries is a participatory process that is in the
hands of the community itself instead of an outside NGO, because this is the most effective
way to handle the process.1094 In this case people participated as ‘beneficiaries’ in
interventions designed to benefit them; participation was for the people.1095 This interpretation
of participation is far from that of ‘public participation’, which can be seen as a human rights
principle.1096
The value of protecting the right to participation, together with guaranteeing rights such as
freedom of the press and freedom of expression, is, according to Amartya Sen, a key issue
with regard to preventing famine. Sen argues that adversarial democracy and an investigative
press are political preconditions in famine prevention.1097 Although Malawi is suffering from
chronic hunger and poverty, a state which only occasionally develops into a large-scale
famine,1098 supporting new avenues for effective public participation in the young democratic
Malawi could promote rights-holders to demand action from duty-bearers before there is
another food crisis. This would mean fostering participation as a political process while also
addressing lack of accountability of people in power, instead of maintaining participation as a
technical process that aims at effectively managing a particular intervention.
A managerial approach to accountability
The WFP had a managerial and financial approach to accountability. The rationale was that
the WFP has delegated authority and was therefore answerable for carrying out tasks
according to agreed performance criteria.1099 Accountability was the ensuring of the
programme being run in the way it was supposed to according to the agreements. “We’ve set
out in the project document to do certain things, we make certain commitments and with
certain controls.”1100 This approach is understandable from the perspective of the WFP who
were indeed carrying out a task on behalf of the government. Surprisingly, it seemed that also
government representatives had the same approach to accountability (an apolitical process
concerned with inputs, outputs, and outcomes). “Using the Sphere Handbook1101 we are
expected to give an adequate amount of food to those affected, at least 2100 kilocalories. And
we are supposed to be accountable. Accountability is both to donors who are providing the
relief items as well as to the recipients, the people who have been affected.”1102
1094
Interview No. 4 with WFP, Malawi 2006. FSD2727.
1095
Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
1096
Article 25 of the ICCPR (1966) makes clear that “Every citizen shall have the right (…) to take part in the
conduct of public affairs, directly or through freely chosen representatives.”
1097
Sen, Development as Freedom, supra note 203, at 178 and 181. See also Ben Crow, “Understanding Famine
and Hunger”, in T. Allen and A. Thomas (eds), Poverty and Development into the 21st Century (Oxford: Oxford
University Press, 2000) 51-74, at 72.
1098
In 2002 Malawi suffered from famine. See chapter 3.4.2 in this thesis. There is a difference between famine
and chronic hunger. “Famine is a crisis in which starvation from insufficient intake of food, combined with high
rates of disease, is associated with sharp increased death rates.” Chronic hunger is defined as “sustained
nutritional deprivation”. Crow, “Understanding Famine and Hunger” supra note 1097, at 52.
1099
Compare with Newell, “Taking Accountability into Account”, supra note 767, at 50.
1100
Interview Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1101
The informant is referring to the Minimum Standards of Humanitarian Response, which are providing
technical guidelines for disaster response in the area of inter alia food aid. For detailed information see Alain
Mourey, “Follow-up of the Code of Conduct of the International Red Cross and Red Crescent Movement”, in E.
Clay and O. Stokke (eds), Food Aid and Human Security (London: European Association of Development
Research, 2000) 309-325.
1102
Interview No. 21 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
166
Donors and UN institutions play a considerable role not only as the providers of funding (in
cash or in commodities) but also by advising on policy issues, and by expressing preferences
on how food should be distributed etc. The issue of holding these institutions accountable for
their actions and non-actions in the area of food assistance was never raised during my stay in
Malawi. When asking about it I was often told that the relationship between the government
and its donors was very unequal (“the donor has a superior stake and the recipient a lower
stake”),1103 and therefore donor accountability was not even on the agenda. As hunger
response is internationalised, responsibility is given to a wide array of people and institutions
(UN institutions, NGOs, donor governments and concerned citizens in any country on the
globe) with vaguely defined accountability relationships.1104
Accountability during the process of channelling food assistance in Malawi was challenged
by the fact that there were two governing structures side by side, one formal (created through
a decentralisation process), and one traditional. According to the formal structure District
Assemblies have the political power and District Commissioners have administrative
power.1105 Traditional Authorities consisting of traditional chiefs (inherited positions) have
important roles in development activities. As we have seen in the above, the traditional
structure was used in the food assistance targeting process. The problem was that it was not
clear whether the traditional structure was accountable to the formal structure.1106 These
uncertainties made it difficult to achieve the aims of the decentralisation process, i.e.,
enhancing accountability and transparency by public participation in local development
planning and by bringing decision-making closer to the public.1107
In a situation where needs are extremely high it is clear that those who have been given power
and responsibility sometimes misuse their status. Since being a member of the Village
Development Committee (VDC) was a voluntary commitment, it ensued that VDC members
put themselves or their relatives on the list of beneficiaries. Another common problem was
that there was a conflict between the chief and the committee, the chief wanting to decide who
should get food assistance,1108 and in that case the VDC was often a puppet of the chief. The
result might then have been that the irrigation created as part of the FFA programme was built
on the chief’s land.1109 There were also situations when the chief, and maybe also the rest of
the community, felt it should be the active community members who voluntarily took part in
development activities, such as building a school, who should get food assistance as a form of
payment. “The community says these people who are not active should not get food, food
should go to them actively involved.”1110 Therefore, addressing unequal power relations and
ensuring that it is possible for all community members to participate is a key issue if the
targeting process is to be accountable. There was, however, no equal participation in decision-
making. I was told that in the local setting it is the people with knowledge who make
1103
Interview No. 1 with Malawi Human Rights Commission, Malawi 2006. Similar statements in interview No.
24, with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1104
de Waal, Famine Crimes, supra note 1067, at 70.
1105
See Stephen N. Ndegwa and Brian Levy, “The Politics of Decentralization in Africa: A Comparative
Analysis,” The World Bank, August 2003. Available at http://www.kit.nl/portals/documents/query.ashx?
RecordID=668296&Portal=RDLG, visited 3 March 2012.
1106
Interview No. 32 with NGO that is not a member of JEFAP, Malawi 2006. FSD2727.
1107
On the decentralization process see Mustafa K. Hussein, “The Role of Malawian Local Government in
Community Development”, 20 Development Southern Africa (2003) 271-282.
1108
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1109
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1110
The interviewee is referring to safety net programmes such as the HIV/AIDS programme, not FFA
programmes that are targeting people who are physically fit to work. Interview No. 33 with NGO that is member
of JEFAP consortium, Malawi 2006. FSD2727.
167
decisions. “In most cases chiefs have knowledge because they are chiefs. They come from a
royal family, they have privileges, it means they have been to school, they have been exposed
more than an average villager.”1111 Open meetings where the names of the targeted people
were shared with the community members, the aim being that in the end everyone is satisfied
with the list, did occasionally take place in villages receiving food through the JEFAP.1112
However, it seems that there were few accountability procedures that would have given the
beneficiaries the opportunity to understand how service providers had discharged, or failed to
discharge the aid.
During my field work in Malawi, I was repeatedly told that food (especially maize) in general
and food assistance in particular is extremely political. Food is a useful political tool in a
country facing one food crisis after the other. (“Food distribution is highly political, it’s one of
the tools for politicians to get votes.”1113) The WFP and its partner NGOs naturally tried to
avoid the involvement of politicians in the targeting process, but sometimes this still
happened. “We also get a lot of pressure from politicians trying to manipulate our programme
to suite their political agenda. Usually when they [the Members of Parliament] are involved
the whole process is distorted. We have to try and make sure that this does not happen, but it
takes time and effort.”1114
In the Malawian context, where the distribution of food is highly politicised there is need for
strong accountability mechanisms. However, it never transpires that politicians are held
accountable for distorting food assistance programmes. What did happen was that the WFP
took action against the transporter from whose truck some bags of maize were lost.
Concerning attempts by politicians to highjack food assistance programmes, this was dealt
with informally (by calling the Department of Poverty and Disaster Management Affairs, and
asking them to talk to the politician).1115 Although creating a legal, administrative, and
political system to address these problems is first and foremost the responsibility of the
Malawian Government, both the WFP and its partner NGOs dealing with the day to day
implementation of food assistance programmes are in the position to voice these concerns as
well as being creative when it comes to enhancing accountability under the current structures.
Creating awareness of the right to demand accountable services from both Government
institutions as well as from NGOs can contribute to an environment where citizens speak out,
demanding accountability for how assistance is handled.
Taking accountability seriously implies that all the different actors who have responsibilities
in the chain of food assistance can be held to account. At the bottom of the chain is the
beneficiary, who might have concerns as to how the targeting was done. In cases of abuse or
mismanagement beneficiaries are likely to turn to the actors present locally, i.e. the VDC or
the chiefs (that most likely were involved in any possible abuse). “We tell the committees that
when they have their own gatherings they should brief the communities. And we tell the
beneficiaries that if you need further information consult the VDC.”1116 In other words, the
1111
Interview No. 24, with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1112
Interview No. 4 with WFP, Malawi 2006; Interview No. 21 with Department of Poverty and Disaster
Management Affairs, Malawi 2006. FSD2727.
1113
Interview No. 3 with donor, Malawi 2006. FSD2727.
1114
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1115
Interviews Nos. 4 and 18 with WFP, Malawi 2006. FSD2727.
1116
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
168
communities are on their own with these problems, without official mechanisms of
accountability.1117
In the JEFAP programme accountability is an end in itself, a requirement that the government,
the WFP and the NGOs have to meet. It is not linked to any broader agenda about what kind
of political, social, and legal changes would be needed in order for beneficiaries to hold duty-
bearers accountable for the food assistance service.
Empowerment as building capacity
Can food assistance be empowering? A donor representative did not see many possibilities for
this: “Empowerment is hard to instil when you are giving somebody something. They don’t
have the ability to pay for it, and nobody wants to be in that situation. There’s very little ways
to empower them, they get a bag of maize and leave. There’s not much dignity in that. At
least you don’t make them beg for it.”1118
The WFP together with the NGOs implementing the programmes were however convinced
that people were indeed empowered through the way FFA programmes are designed. I was
told that the whole idea in FFA is empowering because you ask what the communities want
(“we ask people what do you want, what are the priorities in your area? They decide if
irrigation, forestry, roads.”)1119 Empowerment in this context is associated with being able to
decide for yourself, to manage your own affairs in the community. “The communities are
really being empowered because we just give them the guidelines and they are able to do the
targeting on their own. That’s part of empowerment.”1120
It was claimed that the FFA format built local stakeholders’ capacities and thereby
empowered them.1121 This meant that the beneficiaries receiving the food assistance were not
necessarily empowered but local actors (often the local elite) managing the process gained
more influence and power. The capacity of the actors being ‘empowered’ was supported
through various kinds of trainings, for instance WFP organised trainings for their NGO
partners on leadership of women, and the NGOs had then trained the VDCs on giving women
a voice in the communities.1122 The question of how effectively these kinds of trainings
addressed power relationships within the communities in general and the VDC in particular, is
impossible to assess.
I was told that ‘sensitisation’ is needed among the community members (“so that they
understand why we are there, why is this important”).1123 This implies that the ideas came
from outside (and clearly it was not always ‘understood’ in the communities why certain
things were needed or ‘good for development’, so they needed to be ‘sensitised’), but the
community members had the right to choose between different options and also had the right
to work (as volunteers, without payment) with various tasks in the development and relief
1117
The NGOs having responsibility for the implementation of food aid often has a large area to cover. As an
example it can be mentioned that one NGO with a limited number of staff is responsible for 38 000 households.
Interview No. 33 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1118
Interview No. 30 with donor, Malawi 2006. FSD2727.
1119
Interview No. 3 with donor, Malawi 2006. FSD2727.
1120
Interview No. 28 with NGO that is member of JEFAP consortium, Malawi 2006. FSD2727.
1121
See International Food Policy Research Institute and World Food Programme, “Using Food Aid to Empower
Communities: Concepts and Examples from Madagascar and Honduras”, 2005. Available at
http://www.wfp.org/ policies/Introduction/other/Documents/ifpri_briefs/Brief6Empower.pdf, last visited 26
January 2007.
1122
Interview No. 18 with WFP, Malawi 2006. FSD2727.
1123
Interview No. 3 with donor, Malawi 2006. FSD2727.
169
committees. This indicates that empowerment was seen as a process in which possibilities and
options were broadened – but the ‘beneficiaries’ did not necessarily have a strong voice in
setting priorities and agendas.1124
The way empowerment was understood in the FFA programme perhaps reveals more about
how the mainstream development discourse has defined the notion ‘empowerment’ than about
the food assistance programme itself. As so often happens when talking of empowerment, it
was believed that empowerment is something done or given to people; and when
empowerment is understood as being ‘given’ by one group to another (in this case the NGO
contracted by WFP to the local structures) this hides an attempt to keep control. Real
empowerment may take unanticipated directions, and the ‘power over’ the programme
process that the outside agent has is likely to be challenged.1125
3.2.5 Concluding remarks
Food assistance programmes are large operations that demand a lot of resources in terms of
administration and logistics, from the initial stage of procurement through international and
national transport up to the delivery to the distribution authority. The WFP is known for being
very capable of managing these affairs.1126 The principles of ‘good development practice’
were taken seriously1127 in the JEFAP but participation, empowerment, and accountability
remained tools to increase effectiveness in reaching the intended beneficiaries; instead of
viewing these principles as a something that should govern the relationship between the
government and its citizens. When trying to avoid the political games of food aid, the
development actors altered the programmes into a technical process, thereby also sidestepping
accountability and participation as democratic principles. The food assistance service was
being delivered by an international development agency in partnership with NGOs, on behalf
of the government, and through the support of donors. There is no evidence that food
assistance was dealt with as a rights-based service. Instead, the JEFAP food-for-asset
programme was a well-managed charity-based service.
The WFP has not reformulated its mandate in human rights terminology and the agency does
not refer to the right to food as a justification or legitimisation of its assistance programmes.
There is, however, a link between JEFAP and the right to food through the fact that it is a
human rights obligation of the Government of Malawi to provide food assistance in times of
emergency to those unable to access adequate food by the means at their disposal. As we have
seen, neither the government nor the WFP used this link as a starting point for the operations.
The Government did not view food assistance activities as a human rights issue. The right to
food, or human rights law in general, had few implications for the way JEFAP was
implemented. The notable exception was that the right of non-discrimination and focus on the
1124
Compare with Naila Kabeer’s definition of empowerment for women and with Amartya Sen’s capability
approach. Kabeer, “’Can I buy me love’?”, supra note 915, at 85; Sen, The Idea of Justice, supra note 928, at
231-232.
1125
Rowlands, Questioning Empowerment, supra note 897, at 16.
1126
Jens H. Schulthes, “Is There s Future for the WFP as a Development Agency? Or Does Food Aid Still Have
a Comparative Advantage?”, in E. Clay and O. Stokke (eds), Food Aid and Human Security (London: European
Association of Development Research, 2000) 256-273, at 256.
1127
The conclusion, in a report on the right to food in Malawi, is that “WFP appeared to be the most advanced in
using targeting for its programs”. See Carole Samdup, “The Human Right to Food in Malawi”, Report of an
International Fact-Finding Mission, Rights & Democracy and FIAN International, 2006, at 49. Available at
http://www.dd-rd.ca/site/_PDF/publications/globalization/food/food_malawi.pdf, visited 14 May 2012. Based on
interviews with villagers in Mchinji the fact-finding mission found that accessing food-for-works programs was
characterized by a number of obstacles such as variable criteria and reliability. Ibid., at 35.
170
most vulnerable people in theory had a strong role in the selection of beneficiaries, meaning
that only the neediest people should get food and that there should be no discrimination in the
targeting process. In practice the targeting process had its problems of course. This can partly
be seen as the donors’ way of trying to guarantee that food assistance was not misused for
political purposes, that targeting was indeed based on needs. (“You cannot give the
government the whole responsibility, because it’s too political. You have to work with NGOs
but making sure that the government is setting up a food security system.”1128) One could
even say that trying to make sure that food assistance reaches the most vulnerable was a sort
of ‘human rights conditionality’.
Avoiding the political games of food assistance meant that the influential development actors
were also avoiding ‘hunger as a political problem’. (‘Politics’ is in this context is not about
partisan politics but can be defined as “the manner in which humans divide and distribute
power and resources.”1129) When food is distributed every year this must mean there is
something wrong with the basic structure of the society1130 – and this is a political problem.
Distributing food was only dealing with the symptoms of how the basic structure of the
society was failing to meet the needs of the most vulnerable part of the population. The
question that we will look at in the next two chapters is whether a rights-based or a legal
approach to food insecurity has any transformative potential in advancing societal change in
favour of rights-holders.
3.3 A rights-based approach to food security: Demanding accountable services
as a matter of rights and obligations
It is clear that within a large development NGO such as Oxfam1131 there are several ways of
working with a rights-based approach (RBA), and the purpose of this study is not to identify
‘Oxfam’s approach to RBA.’ Instead the aim is to identify the role of human rights in this
particular intervention and to analyse the meaning of non-discrimination, accountability,
participation, and empowerment. What is characteristic of this particular RBA to food
security, implemented in three districts in Southern Malawi? What is the added value of an
RBA in the context of food security in terms of the potential transformative element of the
approach?
3.3.1 Oxfam’s rights-based approach
Poverty is a state of powerlessness in which people are unable to exercise their
basic human rights or control virtually any aspect of their lives. Poverty manifests
itself in the inadequacy of material goods and lack of access to basic services and
opportunities leading to a condition of insecurity.1132
Oxfam is one of many development organisations that link efforts to decrease poverty to
issues of human rights. Oxfam took the formal decision to adopt a RBA to development in
2000. Embracing RBA was a response to the limited success of previous approaches;
traditional ways of conducting ‘development’ were simply perceived as becoming less
1128
Interview No. 3 with donor, Malawi 2006. FSD2727.
1129
Kent, Freedom from Want, supra note 83, at 121.
1130
Compare with argument in Kent, Freedom from Want, supra note 83, at 123.
1131
Oxfam is a confederation of 17 organisations working with more than 3,000 partners in more than 90
countries. See http://www.oxfam.org/en/about/, visited 20 August 2012.
1132
Oxfam International, “Towards Global Equity: Strategic Plan 2001-2006”. Available at http://www.oxfam.
org/en/files/strat_plan.pdf, valid as of 8 March 2008.
171
effective.1133 This places a lot of pressure on the new approach to deliver effective outcomes,
but so far there are many question marks concerning the implications of applying RBA and its
‘added value’ is difficult to pinpoint. The exact meaning of RBA remained open to the
organisation and its partners in 2007.1134
In the Strategic Plan of 2001, Oxfam committed itself to working for five rights: the right to a
sustainable livelihood, the right to basic social services, the right to life and security, the right
to be heard, and the right to an identity.1135 Some of these rights are directly protected in
international human rights standards, while others, such as the right to livelihoods, are not part
of the human rights regime (although it could be argued that all of the five rights reflect many
human rights treaties and declarations). The motivation behind Oxfam’s choice is pragmatic:
this formulation made sense to Oxfam’s staff and their counterparts around the world.1136
When we examine the five rights it is easy to see why these rights make sense to development
professionals. The right to a sustainable livelihood stands for food security, the right to basic
social services for basic health care, clean water, and education, the right to life and security
for humanitarian action, the right to be heard for participation, and the right to an identity for
vulnerable groups and gender. These issues have been part of the development agenda for a
long time. What is new is the rights language.
In addition to promoting the five rights, Oxfam is committed to the principles of participation,
accountability, the universality and interdependence of rights, non-discrimination and
equality.1137 Although empowerment is not on this particular list it is another important
principle that underpins Oxfam’s work. Oxfam claims that the purpose of the rights-based
approach is to transform the vicious cycle of poverty, and disempowerment “into a virtuous
cycle in which all people, as rights-holders, can demand accountability from duty-bearers, and
where duty-bearers have both willingness and capacity to fulfil, protect and promote people’s
human rights.”1138 As we will see in the following analysis of the programme called Shire
Highlands Sustainable Livelihoods Programme (SHSLP), the core of Oxfam’s approach to
RBA is about empowering rights-holders to demand accountable services as a matter of rights
from duty-bearers, while at the same time supporting the capacity of these duty-bearers so that
they can meet their human rights obligations.
3.3.2 Background to the Shire Highland Sustainable Livelihoods Programme
In order to understand what the introduction of RBA, that started around 1999, has meant for
SHSLP in terms of working methods, it is necessary to first give a brief overview of how the
programme has evolved. Oxfam has been working in the districts Mulanje, Thyolo and
Phalombe in the Southern Region of Malawi since 1996.1139 However, in 1987/88, Oxfam’s
interaction with Mulanje District had already begun through a commissioning of action
research on poverty. This research showed the pervasive, acute, and endemic nature of
poverty in rural Malawi – and the inadequacy of government structures to address the
1133
Marjolein Brouwer, Heather Grady et al, “The Experiences of Oxfam International and its Affiliates in
Rights-Based Programming and Campaigning”, in P. Gready and J. Ensor (eds), Reinventing Development?
Translating Rights-Based Approaches from Theory into Practice (London: Zed Books, 2005) 63-78, at 63.
1134
Oxfam Novib, “How RBA Works in Practice: Exploring how Oxfam Novib and Its Counterparts Apply an
RBA”, 2007 (unpublished document).
1135
Oxfam International, “Towards Global Equity”, supra note 1132.
1136
Brouwer and Grady et al, “The Experiences of Oxfam International”, supra note 1133, at 65.
1137
Oxfam Novib, “How RBA Works in Practice”, supra note 1134.
1138
Brouwer and Grady et al, “The Experiences of Oxfam International”, supra note 1133, at 64.
1139
Oxfam, “Integrating Rights into Livelihoods Programme: A Case Study of Shire Highlands Sustainable
Livelihoods Programme, Malawi” (unpublished project document that is with the author).
172
problems – at a time when the one party regime of President Banda did not officially
recognise the existence of poverty. Due to the authoritarian regime it was not possible for an
international NGO such as Oxfam to work directly with communities. Instead, the action
researchers recommended Oxfam to train district government staff in participatory problem-
solving approaches, with the objective to generate attitudes and knowledge that would foster
the participation of beneficiaries in development. This work was started in 1990, four years
before the introduction of a democratic constitution.1140 It was a major challenge to build
government capacity at that time due to the intense and paranoid political environment.1141
The political environment was often mentioned by Oxfam staff during my interviews as a
critical factor when introducing RBA. I was told that during the run-up to the second
parliamentary and presidential elections (1999) in the country, Oxfam felt the need to increase
awareness among citizens that whether they supported a one political party or not they still
had the right to demand services from government as a right, not as a favour. Oxfam decided
to ‘sensitise’ people on their rights, and at the same time also ‘sensitise’ the government
structures, i.e. the service providers that Oxfam had been working with throughout the
previous years. It was felt necessary to work on two sides: the supply side to ‘stimulate the
supply of rights and services’ and on the demand side to ‘generate awareness of and demand
for these rights and services’.1142 Firstly, the dual approach admitted that it was not
constructive to only create demand when the government institutions may not have resources
to meet those demands,1143 and secondly, the non-conducive attitude among government
officials needed to be addressed. “Now, we are coming from a background where service
providers were seeing themselves as bosses. With the republican constitution it’s more or less
a demotion to servers. So we want them [the service providers] to accept that they have duties
which they have to fulfil and for them to appreciate what there is to understand when we talk
of human rights.”1144
A third reason for the dual approach may have been that this is how Oxfam has been working
from the beginning of the current programme in 1997 when a community based focus was
introduced. Having identified the initial 10 target villages in Traditional Authority Mbuka a
first participatory rural appraisal (PRA) with the whole community present was carried out.
Ever since, PRAs have become yearly events during which communities are assisted in
analysing their problems and discovering their root causes. The fact that since the year 2000
government extension workers have carried out the PRAs without Oxfam supervision shows
that the programme has become ‘their’ programme instead of it being ‘owned’ by Oxfam.1145
The link between Oxfam and the government institutions (the Ministry of Agriculture and
Food Security and the Ministry of Community Development being the most important) was a
so called desk officer. The link between Oxfam and a community was a VDC, which was
elected under the supervision of an extension worker.1146
1140
For a short overview of the political history of Malawi, see Englund, Prisoners of Freedom, supra note 414,
at 13-18 and Englund, “Introduction”, supra note 985, 11-24.
1141
Max Lawson, “Oxfam Mulanje Livelihood Security Programme: Institutionalising Participation for
Sustainable Livelihoods, Programme Model and Lessons Learnt 1987-2000”, at 4 and 6-8 (unpublished project
report).
1142
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193.
1143
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1144
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1145
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 9 and 17.
1146
It should be noted that while the village development committees under the decentralisation structure are at
group village level (on average about 10 villages), in the villages where Oxfam work, there is an elected village
development committee in every village. See Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra
note 1141, at 18.
173
3.3.3 Programme activities in 2005/2006
Throughout the existence of the programme, community members have in PRA exercises
identified food insecurity as their primary problem. In Mulanje people live in rural areas
farming tiny pieces of land,1147 the fertility of which has been impoverished by continuous
maize cropping. The majority of smallholder families have been found to be chronically food
insecure, their own production lasting only for two-to-three months of the year.1148 SHSLP
promotes food security in a number of ways: by provision of improved seeds, provision of
goats, organic manure making campaigns, training of extension workers and farmers on the
management of kitchen gardens, etc.1149
Oxfam has found that in the programme area income security was an important component of
food security. In order to obtain an income, people did casual agricultural labour (‘ganyu’),
which means working for food or cash in the fields of slightly better-off farmers or working
for cash wages on commercial tea estates.1150 Therefore, the programme aimed at improving
labour relations. During the high season about 80 000 people were employed in the tea estates
in Mulanje and Thyolo. The programme supported the Ministry of Labour Departments in
both districts so that it could conduct inspections of workplaces, in order to enforce labour
legislation.1151 Moreover, the newly established Tea, Coffee and Macadamia Workers’ Union
was also supported by Oxfam.
The Tea, Coffee and Macadamia Workers’ Union was formed in 2003. At that time unions
were not recognised by tea estates. Therefore, Oxfam facilitated tripartite negotiations
between the Labour Office (government), the Tea Association (employer) and Tea, Coffee
and Macadamia Workers’ Union (workers) and in August 2003 a recognition agreement was
signed. Two months later an access agreement, which gave the union the right to enter into
the estates and recruit members, was signed.1152 In 2006, negotiations concerning a collective
bargaining agreement were underway. This agreement was to mean that the union can bargain
for better conditions of employment for their members.1153 The level of payment in the tea
industry was so low (1100 Malawi Kwacha per month) that tea estate workers fall below the
national poverty line.1154
Support offered to the Labour Office meant that its staff members could go on regular
inspection visits to tea estates and other workplaces. During these inspection visits staff
checked whether labour conditions at the site were in line with labour regulations. Increased
1147
In the Mulanje District the average land holding size of households is 0.3-0.4 hectares, which is not
sufficient to meet subsistence needs. Elke Kasmann and Wiseman Chirwa, “Mission Report &
Recommendations, Integrated Food Security Programme, Mulanje”, Malawi, GTZ, May 1997, at 10
(unpublished document that is with the author).
1148
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 6; Interview Nos. 5, 6 and 7
with Oxfam, Malawi 2006. FSD2727.
1149
Oxfam, “Shire Highlands Sustainable Livelihoods Programme (SHSLP) Annual Report”, period of May
2005 to April 2006, at 1 (project document).
1150
Lawson, “Oxfam Mulanje Livelihood Security Programme”, supra note 1141, at 6; Interview Nos. 5, 6 and 7
with Oxfam, Malawi 2006. FSD2727.
1151
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193; Oxfam, “SHSLP Annual
Report”, supra note 1149, at 7.
1152
In 2005, the union had 15,000 paying members but in 2006 membership dropped to 7,000 due to a drought
that affected the tea industry. The membership fee was 10 Malawi Kwacha per month.
1153
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. Interview No. 14
with Tea, Coffee and Macadamia Workers Union, Malawi 2006. FSD2727.
1154
1100 Malawi Kwacha is about 6.5 Euros. The national poverty line is 16,165 MK per year (1347 MK per
month). Republic of Malawi, “Integrated Household Survey 2004-2005”, National Statistical Office, October
2005, at 138. Interview No. 14 with Tea, Coffee and Macadamia Workers Union, Malawi 2006. FSD2727.
174
inspections together with training concerning labour rights led to an increase in the complaints
received by the Labour Office. In the year 2000, the Labour Office dealt with 201 complaints
while in 2004 the number was 1,000. These complaints concerned issues such as non-payment
of wages, unfair dismissals and injuries at the workplace.1155 The Labour Office was in this
regard equipped to support the members of the workers’ union in their struggle for fair
conditions of employment.
Droughts, disease outbreaks, crop disease and HIV/AIDS were factors that had a negative
impact on the lives of the 120,000 farm families that the programme was targeting.1156
Therefore, although SHSLP started as a development programme, Oxfam has also been
involved in humanitarian responses in Mulanje, Thyolo and Phalombe. In 2006, there was a
humanitarian programme reaching over 70,000 households with food assistance and another
6,000 households benefited from cash transfers (as an alternative to food assistance).1157
The programme, moreover, focused on various policy issues that had a bearing on food
security. One such issue was the on-going land policy reform. One aim of the SHSLP was to
increase awareness regarding the proposed land law (so that traditional leaders would know
their new role), the new land tenure system, and the new structures that were to be
established.1158 The human rights aspect of land rights1159 and the impact that the proposed
new Land Act could have on food security was not raised. Another issue that had bearing on
livelihoods, especially livestock production, was lack of security. During participatory rural
appraisals community members raised warnings that cases of theft of livestock had a negative
impact on food security. As a response, crime prevention committees were formed and trained
with reference to community policing as well as crime victim rights.1160
The programme also worked with government institutions at the district level to address
gender-based violence as an issue that prevented women from taking part in development-
related activities in the community. A Victim Support Unit where victims of gender-based
violence could seek assistance was established. Furthermore, there were meetings in
communities to discuss the issue and informing people where they could report cases of
domestic violence. According to Oxfam airing out these issues contributed to changes in
attitude: “People, instead of saying these are family issues, ask can I seek redress from these
institutions?”1161
3.3.4 Focus on rights and obligations
At the time of my field research, SHSLP had engaged the NGO Women and Law in Southern
Africa (WLSA) to conduct training programmes with government extension workers, to
stimulate an understanding of the rights and duties in their work, and another NGO called
1155
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. FSD2727.
1156
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1157
Oxfam, “SHSLP Annual Report”, supra note 1149, at 1. Interview No. 6 with Oxfam, Malawi 2006.
FSD2727.
1158
Today customary land is administered by village headmen and chiefs according to local custom. See Asiyati
Lorraine Chiweza, “The Challenges of Promoting Legal Empowerment in Developing Countries: Women’s
Land Ownership and Inheritance Rights in Malawi,” in Dan Banik (ed.) Rights and Legal Empowerment in
Eradicating Poverty (Surrey: Ashgate, 2008) 201-216.
1159
See e.g. De Schutter, “The Emerging Human Right to Land”, supra note 553, at 304.
1160
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7.
1161
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
175
Malawi CARER1162 to conduct sensitization meetings on human rights in the communities. In
order to increase awareness on rights among communities, Malawi CARER had established
village rights committees in all the villages that were part of the SHSLP. Together with
volunteer community based educators, who had received training on rights issues from
Malawi CARER, the village rights committees organised sessions where rights were
discussed and they also assisted individual community members who wanted to seek redress
for human rights violations.1163
Another component of RBA was the so called radio listening clubs. The Malawi Broadcasting
Corporation’s (MBC) Development Broadcasting Unit (DBU) had received support from
Oxfam to establish radio listening clubs in 16 communities. The DBU provided communities
with a microphone, a recording device, a radio, and training how to use the equipment. Then
the local radio listening club made a recording on concerns that the village had, (a ‘village
voice’) e.g. on problems with service delivery or non-existing services, labour issues, land
issues or justice delivery, and took that recording to the responsible office at district level.1164
It was claimed that the realisation of rights was triggered by increasing interaction between
“claim holders (communities) and duty-bearers (people in authority – service deliverers).”1165
The service provider was supposed to listen to the tape and go to the village to respond, and
together set up a plan for how they were going to address the situation. If no action was taken
within the agreed time frame the villagers recorded another programme and that would go on
air on national radio.1166 This weekly radio program, partly consisting of material produced by
radio listening clubs, was in Chichewa.
Radio listening clubs were not unique to the SHSLP. Community or rural radio had been a
feature in participatory rural development initiatives in Malawi also before the SHSLP and
outside of the programme area. In fact MBC radio has long traditions in being used for
agricultural and rural development.1167 Radio is the foremost mass medium in Malawi because
it is far more widely accessed than newspapers and television, and also the internet.1168
Mchakulu, who has done research on radio listening clubs, based on field research from 2002-
2003 claims that club members rarely discussed national issues that affected development at
local level, the main reason being that most people were unwilling to discuss controversial or
politically sensitive issues. This might be changing. Mchakulu’s research shows that the
younger generation wanted a more vigorous and open-minded agenda while the older
generation still wanted a more cautious approach that would not alienate the local political
elite.1169 I was told that the radio listening club I visited did a programme on corruption in the
1162
CARER stands for Centre for Advice, Research, and Education on Rights. Director of Malawi CARER is Dr.
Vera Chirwa, a lawyer and prominent person in Malawi’s history. See Gilman, The Dance of Politics, supra note
982, at 163.
1163
Interview No. 11 with community based educators in Mulanje District, Malawi 2006. FSD2727.
1164
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7-8. Mchakulu lists HIV/AIDS, general community
health, education and agriculture and farming as topics that were dominating most clubs in 2002-2003. See
Japhet Ezra July Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, 33 Journal of Southern
African Studies (2007) 251-265.
1165
Development Broadcasting Unit, “Case Study: Makaula Community Reunion with Service Provider”, at 3.
1166
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1167
Linje Manyozo, “Rural radio and the promotion of people-centered development in Africa: Radio Listening
Clubs and community development in Malawi”, Paper presented in Maputo 6-10 December 2005, at 3. Available
at http://www.codesria.org/IMG/pdf/manyozo.pdf, visited 10 May 2012.
1168
Englund, Human Rights and African Airwaves, supra note 968, at 11.
1169
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 257-258; 265.
176
distribution of government fertilizer coupons,1170 which would suggest that at least this club
did not avoid politically sensitive issues.
Mchakulu’s research also shows that among youths the desire to “exercise their
constitutionally guaranteed right to freely express themselves” was the second most common
reason for joining a radio listening club, information seeking being the primary reason.1171
This indicates a certain awareness of and willingness to use a language of rights.
Mchakulu claims that radio listening clubs present local citizenry with a public sphere for
debate that is free of state interference.1172 It is the club members themselves who have the
power and responsibility to set the agenda for these debates. Any club member is free to raise
a burning issue for discussion.1173 According to Englund, this principle that made it possible
for everyone, regardless of age, gender, and other similar markers of hierarchy, to submit
stories was unprecedented,1174 and it opened new space for public debate in rural Malawi. The
forum was, however, not free from power struggles. Women spoke less than men, and the
longest time slot was taken by service providers, who gave expert-like advice in a manner that
is typical of top-down developmentalism and a common problem to many participatory
approaches.1175
Women made up the majority of the clubs, and this can be partly explained by the fact that the
Development Broadcasting Station’s original aim with the clubs was to meet developmental
information needs of women. In fact, the reluctance of some of the clubs to discuss political
issues emerges partly from the traditional low status of women in Malawi. The women who
founded the clubs emphasised issues that seemed development-oriented and useful for the
improvement of their households and local communities as a way to legitimise the clubs in the
face of a sceptical male-dominated society. Later on men were invited into the club, and this
was seen as a way to get the men’s ‘stamp of approval’.1176
3.3.5 Sustainability and the role of the government
All extension workers had received training on rights-based approaches by the WLSA. This
reflected the fact that the SHSLP was not Oxfam’s programme but a programme implemented
by government structures with the support of Oxfam. It was government service providers
who were doing the job on the ground with communities. Oxfam filled in with resources, for
instance, by providing motorbikes and fuel to extension workers so that they could reach the
communities. In a highly aid-dependent country, such as Malawi,1177 this approach is difficult
to avoid. At the same time it is clear that Oxfam cannot continue with this form of direct
budget support at district level forever. The question is whether central government is going
to make it possible for government officials at the district level to continue with the work after
Oxfam discontinues its financial and other support. (The democratically elected local
government councils are responsible for local development plans to the central government
1170
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1171
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 260.
1172
Ibid., at 253.
1173
Ibid., at 255.
1174
Englund, Human Rights and African Airwaves, supra note 968, at 223.
1175
Ibid., at 42.
1176
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 258-260.
1177
Between 1994-2004 aid disbursements have represented between 13 and 41 % of GNI. See “Evaluation of
General Budget Support 1994-2004: Malawi Country Report”, May 2006, at 10-11. Available at
http://www.idd.bham.ac.uk/general-budget-support/PDFS-OECDDAC/mal.pdf, valid as of 8 March 2009.
177
but have no financial autonomy, and no right to collect taxes. They thereby depend on
financing from central government.)1178
The service providers I met did not think central government is going to provide finances to
continue the work that they had been doing with funds from Oxfam. On the one hand they felt
confident that they had the skills and capacity to carry on with the new working methods also
in the case where Oxfam had to leave Mulanje, but, on the other hand, they were concerned
that the lack of resources will prevent them from using the newly required skills. “If they
[Oxfam] are to pull out it’s just as good to give a gun without the bullets. So how can we use
the gun? How can we reach the community so that we can assist their problems?”1179 Service
providers were worried that if they do not have the resources to meet and assist the
communities, this will create a lot of frustrations. “It’s really a challenge… they [the
communities] have been trained in rights, this time around they are able to demand various
services! And at certain times Oxfam was able to come and rescue where government cannot
manage. Now that Oxfam is pulling out it remains with government to respond to what
communities will be demanding. That will be difficult and at the end of the day we are seeing
some frustrations on the part of the communities.”1180
This question of sustainability is always a challenge in development cooperation. If the trigger
to use a rights-based approach to government service provision at district level comes from an
international NGO instead of the central government, there is no guarantee that the changed
practices that may take place actually last longer than the programme. Another challenge is to
integrate what local duty-bearers learn in rights trainings into their everyday activities.1181
Unless it is clearly spelled out that services in e.g. the area of agriculture are to be seen as
obligations on the part of the local authorities and this approach is integrated into the official
documents of these institutions, practices are not likely to change.1182
Oxfam had taken conscious steps to move away from being a service provider to being a
facilitator. Instead of providing funding directly to small-scale interventions in communities it
had started giving funding to the District Development Fund that is administrated by the
District Assembly. Communities, through VDCs, were encouraged to apply for funds from
this Fund. The idea was that people would understand that Oxfam is not going to be present in
the district forever,1183 and would learn to turn to the government structures as duty-bearers.
The process of how a duty-bearer was identified in the SHSLP is interesting from a human
rights law perspective since traditionally only the state (government) and its agents are
recognised as having duties under human rights instruments.1184 When human rights enter into
development efforts it is, however, increasingly acknowledged that rights are also relevant in
horizontal relationships between persons.1185 In the SHSLP, governmental, non-governmental
1178
Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 48.
1179
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1180
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1181
Interview No. 17 with Women and Law in Southern Africa, Malawi 2006. FSD2727.
1182
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1183
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1184
Krzysztof Drzewicki, “Internationalization of Human Rights and Their Juridization”, in R. Hanski & M.
Suksi (eds), An Introduction to the International Protection of Human Rights: A Textbook (Finland: Institute for
Human Rights, second revised edition, 1999) 25-47.
1185
Ghalib Galant and Michelle Parlevliet, “Using Rights to Address Conflict – Valuable Synergy”, in P. Gready
and J. Ensor (eds.), Reinventing Development? Translating Rights-Based Approaches from Theory into Practice
(London: Zed Books, 2005) 108-128, at 115.
178
and private actors were all seen as relevant duty-bearers.1186 What mattered was who the duty-
bearer is in the eyes of the community members, not under some legal provision. The
community simply wanted to know who can help them to solve their problems.1187 More often
the help came from NGOs, instead of government structures. This implied that in
communities Oxfam was seen as a service provider, and sometimes even as the ultimate
authority. This constellation was the result of Oxfam (and other NGOs) having more funds
and resources than government structures.1188 NGOs that wanted to promote and facilitate the
government duty-bearers instead of themselves providing services directly to the
communities, find that it was not easy to change roles,1189 especially since community
members often thought Oxfam was doing a better job than the government.1190
3.3.6 Giving meaning to human rights: An actor-oriented approach
In the SHSLP there was open use of ‘rights language’, especially by the radio listening clubs.
In the programme documents there was, however, no analysis of the legal framework nor was
there reference to specific rights in the Constitution of Malawi or international human rights
instruments ratified by the country. Oxfam’s own (international) list of five rights was not
used either. There was simply no explicit link between the programme activities, focussing
mainly on food security, and the legal framework.1191
Oxfam staff told me that the Bill of Rights in the Constitution of Malawi1192 was the point of
reference for the human rights awareness rising sessions. The challenge was that economic
and social rights had a weak position in the Constitution in Malawi. For instance, the booklet
“Human Rights in the Constitution of Malawi: The Bill of Rights”1193 reflected the
Constitution in the sense that the political and civil rights were given the majority of the
attention while only the last page dealt with the right to development, which entails access to
basic services such as education, health and food.1194 Oxfam wanted to change attitudes
towards socioeconomic rights: “Food security is a human rights issue. And people don’t look
at it as a human rights issue. Government has to look at food security as a human rights issue
and make sure people are food secure.”1195 The strategy taken in the SHSLP was to work
directly with the policy and practice by district level government institutions instead of
influencing the legal framework.
I was perplexed by this lack of analysis of and reference to the legal human rights framework
until I came across theoretical material on an actor-oriented perspective on human rights in
1186
Oxfam Novib, “How RBA Works in Practice: Exploring how Oxfam Novib and Its Counterparts Apply an
RBA”, 2007 (unpublished document) at 12.
1187
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1188
Interview No. 24 with Department of Poverty and Disaster Management Affairs, Malawi 2006. FSD2727.
1189
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1190
I discussed the role of Oxfam and other NGOs with a group of women at Mulanje Mission and they said
people in general think it is better that aid is coming directly from NGOs than going through the traditional
structure of chiefs. It is believed that government structures at all levels are corrupt. Group Interview No. 4 with
female members of Church and Society in Mulanje District, Malawi 2006.
1191
This is often seen as the first step when applying a rights-based (or a human rights-based) approach to
development. See OHCHR, “Frequently Asked Questions”, supra note 81, at 15.
1192
Constitution of the Republic of Malawi, 1995, Chapter IV.
1193
Malawi CARER, 2001. Malawi Carer has produced awareness raising materials on human rights in the form
of booklets and posters (in English and Chichewa).
1194
Article 30(2) of the Constitution reads: “The State shall take all necessary measures for the realisation of the
right to development. Such measures shall include, amongst other things, equality of opportunity for all in their
access to basic resources, education, health services, food, shelter, employment and infrastructure.”
1195
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
179
development, and I was able to put the SHSLP into that conceptual framework. In the SHSLP
actors did not primarily rely on fixed definitions of the human rights concept in general, or the
right to food concept in particular, instead the meaning of ‘human rights’ were shaped in the
process of demanding services from local duty-bearers.
One could assume that lack of analysis of the legal framework would have an effect on
situation analysis but some actors within the SHSLP had taken steps into the direction of
using rights as a roadmap for development (‘rights’ defined very loosely). Before radio
listening clubs decided to record a ‘village voice’ they identified a problem in terms of rights,
and they also identified a duty-bearer (although the term ‘service provider’ was mostly used).
For example the community agreed that one reason for food insecurity was lacking extension
services needed to produce more food.1196 A DBU officer explains:
The way our right to food is being denied is that we are not getting the services,
the extension services from Government extension officer. So he’s not coming to
the community to teach us on how we can make our ridges. As a result we are not
producing food and we are hungry. So here we wanted to demand that now. So
they [the RLC] invite that community and they make that recording. And in that
recording they are going to explain how his absence or his inability to come to
deliver services is violating their right to have food so they explain in that process
that you see our right to food is being denied here because of your absence, you
are not coming here to give us your services.1197
This human rights language is far from that in international human rights covenants and closer
to the everyday lived reality of power struggles over resources. Members of the radio listening
clubs were less specific (than the DBU officer quoted above) on how they had given meaning
to the right to food to include extension services,1198 but the general impression was that
people were starting to demand services from duty-bearers as a matter of rights, not as charity
as it used to be. There seemed to be general awareness that I have a right, without people
being specific1199 and in most cases without relating rights to obligations of duty-bearers. In
some instances there was, however, also awareness that the fact that I have a right means
somebody else has a duty. (“We know we have the right to food so government should reduce
the maize price.”1200) When asking what should be the role of the central government I was
told: “The major role that the government should play is to ensure that we villagers here have
all the social services present in our communities. In addition, the government has a
responsibility to make sure that all our rights, including right to food, right to health, right to
education are fulfilled. It’s their responsibility.”1201 These quotations show that in the lived
reality of villagers it made sense to equate rights with services.
The way actors in the SHSLP gave meaning to rights and obligations is an example of how
“rights are shaped through actual struggles informed by people’s own understandings of to
1196
Group Interview No. 2 in Ngamwani Village in Thyolo District, Malawi 2006. FSD2727.
1197
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1198
Group interview No. 2, Ngamwani Village in Thyolo District, Malawi 2006 (with members of RLC): “One
program that I’d like to highlight since the RLC was established is how to make ridges and to protect soil. We
identified that problem because it was also abusing or violating our right to have food or food security. So we
decided to record a program to look at the issue of ridges that was also contributing to shortages of food in this
area.” FSD2727.
1199
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1200
Group Interview No. 1, Malawi 2006. FSD2727.
1201
Group Interview No. 2, Malawi 2006. FSD2727.
180
what they are justly entitled.”1202 Actors do not necessarily use any ‘legal’ argumentation but
instead insist on what they think “they are justly entitled to” – ‘just entitlement’ as opposed to
‘an ethic of human rights’ – and this is characteristic of an actor-oriented approach to human
rights in development, as spelled out by Nyamu-Musembi.1203 One can also draw parallels to
the constructed rights tradition, according to which human rights are constantly being
negotiated, defined and redefined at all levels of society.1204 Human rights are seen as
contextual and dynamic, grounded in lived experience. This tradition underlines people’s
agency in human rights protection and realisation.1205
According to Englund the Chichewa radio programme, partly produced through radio
listening clubs, has generated a nationwide audience that “debates the abuse of power through
idioms that are different from the vocabulary introduced by human rights activists”.1206 The
kind of individualistic and assertive claim-making that has been promoted by human rights
activists, who also tend to focus on civil and political rights rather the full range of rights
claims, has been absent.1207 The radio programme questioned the idea that human rights need
to be introduced by experts. All of this contributed to an alternative debate on injustice,1208
providing competing meanings to ‘human rights’ and questioning the official and NGO
human rights discourses. This supports the suggestion by Gready and Ensor that a rights-
based approach has potential to not only reinvent development but also reinvent human
rights.1209
This kind of actor-oriented approach in which human rights are loosely defined without
reference to international norms and standards is contrary to the ‘express linkage’ requirement
of HRBAs, being the basis of inter alia the Common Understanding among UN Agencies.
According to this thinking human rights standards and principles should guide all phases of
programming, and human rights should determine the relationship between rights-holders and
duty-bearers, i.e., there should be express linkage to the normative human rights system.1210
From a community development perspective it is, however, not acceptable that human rights
are defined in a non-participatory manner by the powerful for the powerless. Participation has
long been part of a community development discourse; we recall that participation has been
on the agenda of Oxfam since 1990. A community development perspective on human rights
strives to examine ways to make the process of giving meaning to human rights more
democratic and participatory.1211
Working with a loose definition of human rights enabled Oxfam and its partners to create
more dialogue about the meaning and content of the human rights concept than that which is
normally the case in awareness raising projects. The voice of the actors was particularly
strong in radio listening clubs as they are free to set their own agenda in terms of claiming
needs as rights.
1202
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41. See also
Ife, Human Rights from Below, supra note 8.
1203
Nyamu-Musembi, “An Actor-oriented Approach to Rights in Development”, supra note 18, at 41-51.
1204
Ife, Human Rights from Below, supra note 8, at 76.
1205
Ibid., at 76-77.
1206
Englund, Human Rights and African Airwaves, supra note 968, at 3.
1207
Ibid., at 5 and 9.
1208
Ibid., at 221.
1209
Gready and Ensor, “Introduction”, supra note 70, at 14.
1210
Common Understanding, supra note 50.
1211
See Ife, Human Rights from Below, supra note 8, at 126-127.
181
However, when actors come together to give meaning and content to what they mean by
human rights, when they decide what they are going to struggle for, there is an obvious risk
for exclusion and discrimination. In a RBA, such as that used by Oxfam, the task of the
facilitators is to make sure the voice of everyone is heard and reflected. Otherwise there is a
risk that the agenda is set by the powerful for the powerless, only on the community level.
The data I have from the SHSLP is not rich enough to analyse the process of how actors come
together to give meaning to human rights and whose voice has been the strongest in radio
listening clubs, and other forums. Certainly, the radio listening club process has not been free
from challenges and power struggles, as has been shown by Mchakulu’s research.
Interference from local political elites, which in some cases can lead to violence, and
sometimes fears of state intervention, were factors that weakened these forums.1212
In order to avoid exclusion and discrimination in the clubs, it would have been important to
put more effort into the process of identifying and defining an issue as a human rights issue to
be taken up by the club. Jim Ife reminds us that a human rights from below approach to
community development is not an ‘anything-goes-approach’. There should also be an
aspiration of universality:1213 what constitute ‘our’ human rights in this community should
also constitute ‘your’ human rights in another community. It is, moreover, important that
some core values and ideas embedded in the legal documents that constitute human rights
law, such as autonomy, choice, bodily integrity, equality,1214 and voice, are maintained and
respected in an actor-oriented approach to human rights, which has no fixed definitions of the
human rights concept.
3.3.7 Are rights confrontational?
In most of the interviews I was reminded of the historical context of Malawi; that the whole
issue of human rights arose around 1994 with the transition from a one party regime to
drafting a new constitution that provides for democratic governance and the introducing of a
bill of rights. Introducing ‘rights talk’ in villages, promoting people to demand services as a
right and thereby challenging power, and doing this in a very resource constrained
environment, is indeed not an easy task.
Human rights are sometimes accused of being ‘political’, or overly focussed on the state and
using adversarial techniques to hold violators accountable. It is claimed that this is unhelpful
for the development process.1215 (The debate about the de-politicisation/re-politicisation that
human rights potentially bring as they enter into development is dealt with elsewhere. If
human rights are to be bring about transformation, they have to be ‘political’ in that they have
to deal with political questions about how to share resources.) The DBU’s approach – making
radio programmes where duty-bearers’ lack of action are exposed on national radio – can
indeed be defined as almost confrontational, but it is unclear if this approach has found its
inspiration in human rights techniques or in empowerment techniques stemming from the
development discourse. Moreover, Mchakulu’s research shows that at least some clubs used
1212
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 265.
1213
Ife, Human Rights from Below, supra note 8, at 213.
1214
Sally Engle Merry refers to inter alia these values in Human Rights and Gender Violence, supra note 287, at
221.
1215
Mary Robinson, “What Rights Can Add to Good Development Practice”, in P. Alston and M. Robinson
(eds), Human Rights and Development: Towards Mutual Reinforcement (Oxford: Oxford University Press,
2005) 25-41, at 32.
182
to avoid politically sensitive issues and debates, focusing on economic empowerment rather
than political empowerment.1216
The difference between ‘human rights techniques’ and ‘empowerment techniques’ originating
from development discourse could potentially be quite substantial as adversarial human rights
techniques aim at duty-bearer action to remedy the situation while the development discourse
often promotes increased self-help and self-reliance in the name of empowerment.1217 In the
case of the radio listening clubs the two approaches seem to come together. The responsible
duty-bearer is invited to the community for a dialogue and it is underlined that both sides (the
community as well as the service provider) should contribute to solving the problem. “After
discussion we make an action oriented plan: what are we going to do as a community and how
are you as a service provider going to assist us?”1218 Mchakulu notes that members of radio
listening clubs are not asking the authorities and service providers to solve problems on their
own but instead the club members propose possible solutions.1219
Not all international NGOs applying what they call RBAs have gone as far as Oxfam and the
DBU in Mulanje, Thyolo and Phalombe. For instance CARE Malawi had developed an
approach to RBA where there was no explicit use of rights language due to the sensitivity of
the issues: “When you start talking of accountability and transparency in your face like that
the authorities don’t always take it positively. We were aware of that. We said how can we
engage ourselves in a rights based programme but at the same time not being
confrontational?”1220 CARE also underlined the ‘responsibility’ of the communities in an
explicit way, thereby promoting self-reliance. For example, when a community becomes
aware of the resource constraints that a health centre is struggling with, they start to invest in
preventive mechanisms (“because they know that they cannot rely on this health centre, as it
is highly limited in terms of the services it can actually provide.”1221) If CARE had had a
more confrontational approach it could have assisted the community in taking the issue from
the district level to the central level, and to demanding additional resources.
Oxfam’s strategy to support channels for rights-holders’ demands was also visible in the area
of labour relations. Again, Oxfam has a dual approach where it supported the Government
Labour Office as well as the Te, Coffee and Macadamia Workers’ Union. Again, training and
sensitisation on labour regulations was a key entry point into cooperation with rights-holders
and duty-bearers alike. The training sessions on labour rights that Oxfam facilitated targeted
the general public, workers at tea estates, and other workplaces, as well as managers at tea
estates.1222
The environment in Mulanje and Thyolo, where there is a long history of plantation
agriculture and a sense of acute land scarcity (that is directed against the plantations), may
facilitate political mobilisation of villagers.1223 In this context, it has been possible for Oxfam
1216
Mchakulu, “Youth Participation in Radio Listening Clubs in Malawi”, supra note 1164, at 264.
1217
See Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 1431.
1218
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1219
Cornwall and Nyamu-Musembi, “Putting the ‘Rights-Based Approach’”, supra note 44, at 264.
1220
Interview No. 32 with CARE, Malawi 2006. FSD2727. DFID had a programme called “Transform: Through
Rights to Needs for Marginalised Malawians (2001-2003)” that was suspended in 2003 at the request of
government. The main reason for the closure was “an underestimation of the sensitivity of the project.” See
Barnett et al., “Evaluation of DFID Country Programmes”, supra note 998, at 32.
1221
Interview No. 32 with CARE, Malawi 2006. FSD2727.
1222
Interview No. 13 with Ministry of Labour, District Labor Office in Mulanje, Malawi 2006. FSD2727.
1223
Daniel Alberman, Desmond Kaunda and Mick Moore, “Fashion, Passion and Ambiguity: A review of How
DFID Malawi has Incorporated Rights-Based Approaches into its Work”, 31 March 2005. (Report is with the
author).
183
to develop a ‘soft confrontational approach’ in which demands are presented to duty-bearers,
but at the same time underlining dialogue, mutual responsibility, and action by all sides.
3.3.8 Rights-based development principles
The following section analyses what non-discrimination, participation, empowerment and
accountability meant in the SHSLP. I discuss the principles in this order because of the role
non-discrimination plays in targeting; it cannot be separated from participation and
empowerment.
Vulnerability, participation, and power: Increasing the voice of women
As stated earlier, targeting the most vulnerable has been interpreted as being part of an
equality agenda. With regard to targeting, the same ‘mantra’ that was on the lips of all
development agencies – lifting the poorest of the poor out of poverty – was also repeated by
Oxfam: “We are looking at children, chronically sick, women. Those are the key targets,
because we want to get them out of poverty.”1224
In the SHSLP, the question of who is most vulnerable was critical during the PRA exercise
that was the basis of all development interventions in the communities. The facilitators (from
government institutions) used tools such as ‘the resource walk’ to identify those with fewer or
no resources. They used simple questions such as ‘who can afford to buy bread’ or ‘who owns
a bicycle’ when categorising people into vulnerable and less vulnerable. An in-depth
discussion on the ethical aspects of ‘categorising’ people is outside the scope of this paper,
but it is clear that this process has its own inherent problems (especially since the difference
in terms of resources between the ‘vulnerable’ and ‘less vulnerable’ is very small). It should
also be kept in mind that ‘lack of resources’ or ‘poverty’ can be defined in many ways.1225
The conclusion in previous sections regarding the possible difference between using non-
discrimination as a principle in vulnerability assessment and targeting in ‘good development
practice’ compared to using non-discrimination as a lens for analysis in human rights-based
work, is that focus in the latter would be more on finding out who is marginalised and
vulnerable to exclusion and discrimination than who is vulnerable to e.g. food shortages. The
answer might be that the same individuals and groups are experiencing both discrimination
and food insecurity, but the question is different. Furthermore, when the question of why
there is discrimination and what can be done to address it, is added to the analysis and the
affected population is actively involved in the inquiry, this can potentially be the first step to
changing the situation (agency). This did not happen in the SHSLP at the time of my field
research.
In RBA it is often claimed that engagement with rights, in a social and political process, can
transform established, often hierarchical structures within society, and therefore rights can
potentially be used as entry points to challenge power relations.1226 In the SHSLP it was
recognised that addressing unequal power relations is indeed important if the so called
vulnerable groups are to be included in the development process, but it is unclear how
1224
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1225
In local languages there are four different concepts to describe the state of poverty: umphawi, kusauka,
kusowa, and usiwa. The first term means poor quality of life arising from lack of basic necessities, the second
translates into poor quality of life arising from continuous struggle to live, the third term means lack of anything
at a particular time, i.e. it refers to a temporary situation, and the forth is lack of clothing. Kasmann and Chirwa,
“Mission Report & Recommendations”, supra note 1147, at 18.
1226
Gready and Ensor, “Introduction”, supra note 70, at 23.
184
explicitly rights were used as justification for questioning hierarchical structures. “We can
only get them out of poverty through inclusion. It’s an issue of changing relations within
communities, an issue of redefining roles and responsibilities and sharing power.”1227 In
human rights terminology ‘changing relations’ means addressing discrimination. If the human
rights framework had been used as a starting point for the problem analysis, that is basically
what the participatory rural appraisal is concerned with, questions around vulnerability would
focus on discrimination, non-inclusion, and equality in the opportunities to participate instead
of lack of resources alone. Dividing the villagers into categories based on their economic
status is as such not enough to establish patterns of exclusion and marginalisation.
The first priority seems to have been to ensure the participation of vulnerable groups in the
community structures such as the VDCs and its sub-committees. The SHSLP had a policy that
there should be equal representation of both sexes in the VDC, so that half of the 10 members
were to be women. In addition, groups such as people living with HIV should be
represented.1228
Ensuring equal participation is indeed important since the VDC and other committees play a
key role in community development. After the PRA, where priority problems were identified,
the villagers together with the service providers made a development plan for the village. The
implementation of the plan was in the hands of the VDC. In practice this meant that the VDC
applied for funding from the District Development Fund for small scale interventions (e.g. in
the area of clean water).1229
In the programme area the kinship structure is matrilineal, meaning that heritage of property
such as land passes through the female line. Female and male children alike inherit property
from their maternal uncles and not their fathers.1230 After marriage the husband settles in the
village of his wife. In theory, this provides for a strong economic position for women,1231 but
it became clear during the interviews that in practice decisions about and control over land are
taken by the man in the family.1232 Studies have shown that women’s rights to land in such
matrilineal systems are more theoretical in nature.1233 Additionally, it should be noted that
leadership positions are usually held by men.1234 Success or failure in promoting women’s
real influence over the politics of development through having a voice in elected village
bodies is not easy to demonstrate. Ensuring formal participation by women is not enough if
the female representatives sit quietly at the back. However, an outspoken effort to have equal
representation by women in VDCs has made it possible for women to take part in decision-
making.1235
When speaking of women and participation, it is necessary to elaborate on the concepts of
power and empowerment. As mentioned previously, Rowlands points out that some
definitions of power focus on the ability of one person or group to get another person or group
1227
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
1228
Interview No. 7 with Oxfam, Malawi 2006. This policy was mentioned also during the two group interviews.
1229
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1230
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra 1158, at 210.
1231
Kasmann and Chirwa, “Mission Report & Recommendations”, supra note 1147, at 4.
1232
Interview No. 7 with Oxfam, Malawi 2006; Interview No. 5 with Oxfam, Malawi 2006; Interview No. 25
with Ministry of Lands, Physical Planning and Surveys, Malawi 2006; Group Interview No. 4 with female
members of Church and Society in Mulanje District, Malawi 2006. FSD2727.
1233
Chiweza, “The Challenges of Promoting Legal Empowerment”, supra note 1230, at 211.
1234
Kasmann and Chirwa, “Mission Report & Recommendations”, supra note 1147, at 4. See also Gilman, The
Dance of Politics, supra note 982.
1235
Interview No. 7 with Oxfam, Malawi 2006. FSD2727.
185
to do something against their will.1236 When defining power as ‘power over’ (being able to
control something, even having control over another group), then empowerment means
bringing people who are outside the decision-making process into it.1237 Oxfam and the
SHSLP seem to have aimed at empowering women in this conventional meaning of the word.
There was strong emphasis on women’s participation in political structures and formal or
informal decision-making. This indicates that participation had a broader meaning and agenda
behind it than what was the case in the JEFAP. Women and men did not participate merely as
‘beneficiaries’ but also as citizens and rights-holders.1238
Using the conventional definition of power as ‘power over’, i.e. if one group gains power it
will be at the expense of another group’s power position,1239 usually creates tensions. One
such group was the village heads, who had given up part of their power to other community
structures such as VDCs.1240 Because the SHSLP underlined equal participation and the
importance of fair representation in the VDC and its subcommittees, Oxfam staff believed
people had been empowered to question the position of the village head men. “People used to
see the village headman as God, they would not question him. But now they can say no.”1241
It seemed, however, that the position of the village heads varied from one village to another. It
would be naïve to think that problems around the power position of traditional leaders have
been solved. In many villages people were still afraid of the village head man and would not
confront him with concerns about corruption, for example, during the distribution of
government subsidised fertilizer coupons. “We are voiceless because it’s our village headman
who is doing that [corruption]. We have no power. We are afraid.”1242
Participation has been an important theme since the beginning of the SHSLP, when one aim
was to teach participatory methods to government extension workers. It seems that, in the
SHSLP, participation has a broader meaning than functioning as a developmental tool
(although PRA is such a tool). The aim was not only to involve and activate people around
common development problems, and thereby increase a sense of ‘ownership’, but also to
address issues of equality and power and thereby to increase the voice of the voiceless.
Participation, nevertheless, remained at the district level instead of making efforts to increase
the voice of community members at a central level, where policy decisions are actually made.
Empowerment as being aware that ‘I have a right’
What we have seen in the chapter on food assistance is that empowerment is often linked to
building capacity and ‘handing over power’ to local structures. There are, however, other
ways of conceptualising power than ‘power over’, i.e., power as domination. When women
(or other marginalised groups) gain ‘power to’, ‘power with’ and ‘power from within’ rather
than ‘power over’ this entails a very different meaning of empowerment.1243 Within these
non-dominative interpretations of power, empowerment is concerned with the processes by
which people become aware of their own interests – perhaps in this case defined as rights. As
1236
Rowlands, Questioning Empowerment, supra note 897, at 9.
1237
Ibid., at 13.
1238
Comapre with Cornwall, Beneficiary, Consumer, Citizen, supra note 837, at 22.
1239
Rowlands, Questioning Empowerment, supra note 897, at 11.
1240
As an example it can be mentioned that some chiefs also feel threatened by the village rights committees and
community based educators. Group interview No. 11 with Community Based Educators, Malawi 2006.
FSD2727.
1241
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1242
Group Interview No. 4 with female members of Church and Society in Mulanje District, Malawi 2006.
FSD2727.
1243
Rowlands, Questioning Empowerment, supra note 897, at 12.
186
put by Rowlands: “Empowerment is thus more than participation in decision-making; it must
also include the processes that lead people to perceive themselves as able and entitled to
make decisions.”1244 In the SHSLP it seemed that as women became aware of ‘I have a right’
this process started, whether this is the intention of the programme or not.
This awareness means adopting a new sense of self that incorporates rights.1245 Research by
Merry shows that the rights framework does not displace other frameworks but adds a new
dimension to the way individuals think about their problems.1246 The same research also
shows that the human rights framework is powerful because it shows that something, such as
gender violence or hunger, is not natural and inevitable.1247
When engaging in a human rights-based approach to development, the aim is not just
‘empowerment in general’, or ‘building capacity in general’, but empowerment in relation to
claiming and realising human rights. Rights-based empowerment is concerned with knowing
your rights, acting on them and holding duty-bearers to account.1248 Rights language is
therefore a key factor in the empowerment process. ‘A rights-holder’ is per definition entitled
to something (what he or she is entitled to, is often defined by the actors themselves, as we
have seen).
As can be recalled, in the SHSLP, human rights language is far from that used in international
human rights covenants, and in fact closer to the everyday reality of power struggles over
resources. In the two communities that I visited, one in Mulanje and one in Thyolo, people
referred to the right to services, the right to development, the right to food etc.
Human rights-based empowerment usually highlights the formal and external aspects of
creating an environment in which people can empower themselves. Emphasis is on enhancing
people’s ability to claim and exercise their rights effectively.1249 There is usually no
questioning whether people value expanding their skills and choices into claiming and
exercising their rights. (The aspect of empowerment emphasised by Naila Kabeer and
Amartya Sen.) The data I have about the SHSLP is not rich enough to make a conclusion
about how active the actors have been in setting the agenda, but it seems that within at least
the radio listening clubs there was a genuine possibility to engage in any challenge the
community faced. Whether the club members chose to apply a rights language to make their
claim was something they did if it made sense in their lived reality. Beneficiaries also played
a crucial role in PRA by e.g. choosing priority intervention for the own community. The
absence of a clear link to any specific list of rights in Oxfam’s work in the SHSLP gave room
for an actor-oriented approach to rights-based development, creating space for participation
and empowerment, rights and obligations. Otherwise there is always a risk that the priorities
and perspectives of the local actors become over-shadowed by an approach focusing on a
specific rights-based target such as a specific right.1250
Among Oxfam staff and extension workers there was a high level of optimism that human
rights language has already by itself empowered the communities. “The trainings [on rights]
1244
Rowlands, Questioning Empowerment, supra note 897, at 14 (emphasis in original).
1245
See Merry, Human Rights and Gender Violence, supra note 287, at 181.
1246
Ibid., at 180.
1247
Ibid., at 180.
1248
Danish Institute for Human Rights, “Malawi Baseline Data, Malawi HIV/AIDS programme 2005-09”,
Baseline research 2005-06, report of 2006, at 18. Available at http://www.humanrights.dk/files/pdf/
Publikationer/ Forskning/hos3.pdf, visited 2 February 2012.
1249
See e.g., Hansen and Sano, “The Implications and Value Added of a Rights-Based Approach”, supra note
708, at 51.
1250
Newman, “Challenges and Dilemmas in Integrating”, supra note 863.
187
are more or less like an eye opener. They never knew before and they say now they know.
And it’s like they know their rights and they know they have the right to demand services
from each and every sector of government.”1251 The question is whether awareness of the fact
that ‘I have a right’ is enough? The capacity to actually take action and claim rights from
government institutions (to demand services), or to start a process to seek redress for a
violation (this could mean visiting the labour office or the police) was still very low in the
communities. The small office of Malawi CARER (with two staff members) did not have the
resources to assist village rights committees and volunteer community based educators in the
220 villages in the programme area.
A baseline research carried out in Malawi by the Danish Institute for Human Rights the same
year as my visit to Mulanje and Thyolo (2006) revealed that rural rights-holders (small-holder
peasants, pieceworkers and fishermen) were barely confident to make claims that went
beyond their community. This was mainly because of low expectations as regards the
structures of local governance. They tended to see making claims as futile efforts for the
reason that the capacity and willingness of district authorities to respond to such claims were
deemed weak or non-existent by community members.1252 The data was collected in
completely different districts (Salima and Nkhotakota),1253 and cannot be directly applied to
the situation in the SHSLP districts, but I share the observation that in order for meaningful
exchange to take place, duty-bearers have to feel and act responsible. Sano observers that this
is more likely to happen when NGOs facilitate linkages between communities and district
authorities.1254
In order for rights-based empowerment to take place, community members cannot be left
alone in the struggle to make demands. Leaving things at the point of rights awareness is not
enough. ‘Preaching the language of rights’ is not very effective if there is no link to
interventions and to action-taking. If rights are to be empowering, people need to become
involved, to mobilise in a struggle for social justice, not to just be passive listeners taking in
knowledge from outside experts. The secret behind the popularity of the radio listening clubs
is perhaps to be found in the active role of the participants. There was a conviction that
through radio listening clubs communities can mobilise themselves and make a difference.1255
The popularity of the weekly radio show meant that the DBU was under pressure to set up an
increasing number clubs.1256
Mobilising rights-holders to claim rights from duty-bearers while at the same time building
the capacity of the duty-bearers to respond to the demands, has been a creative and
empowering way to engage in rights-based development. At the same time, it should not be
forgotten that also duty-bearers need to be empowered. Duty-bearers should not only be
aware that ’I have an obligation’ but also have the tools to fulfil this obligation. It will be a
1251
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1252
Hans-Otto Sano and Hatla Thelle, “The Need for Evidence-Based Human Rights Research”, in F. Coomans,
F. Grunfeld & M. T. Kamminga (eds), Methods of Human Rights Research (Antwerp: Intersentia, 2009) 91-109,
at 102. Research carried out by Sally Engle Merry supports that “vulnerable individuals’ willingness to adopt a
rights framework depends in part on the way institutions respond to their rights claims.” Merry concludes that
poor women see themselves as rights-subjects only when powerful institutions treat them as if they are rights-
subjects. Merry, Human Rights and Gender Violence, supra note 287, at 215.
1253
Danish Institute for Human Rights, “Malawi Baseline Data”, supra note 1248, at 4.
1254
Sano and Thelle, “The Need for Evidence-Based Human Rights Research”, supra note 1252, at 102.
1255
The level of optimism about what the local Radio Listening Club can achieve was high in the village. Group
Interview No. 2, Malawi 2006. FSD2727.
1256
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
188
long journey before district level government service providers in Mulanje, Thyolo and
Phalombe have those tools.
Accountability: putting pressure on the government
The traditional approach to accountability is concerned with providing checks and balances in
the development process. In the SHSLP there was also the ambition that actors should account
for their actions and for how they have spent resources. However, as we will see below,
accountability was taken somewhat further, into the area of mobilising communities to putting
pressure on duty-bearers, thereby linking accountability to obligations, and rights-based
empowerment.
Accountability is often linked to ‘good governance’ and this is also the case in the SHSLP.
Oxfam claimed it promoted good governance in the name of effective monitoring of how
funds were being used. With regard to the funds used by communities for small scale projects
it was the task of District Assemblies to do the monitoring. At the village level, the
community structure that was responsible for the project organised public meetings during
which they accounted for how the money was spent.1257 Here it should be noted that the VDC
acted as duty-bearer in this instance.
As we have seen, new accountability relationships and frameworks emerge when human
rights enter into development policies and practices. There is stronger focus on the state-
citizen relationship as compared with the donor-implementing agency accountability
relationship. What is striking in my data is that local representatives of the government
resisted when Oxfam tried to make changes in how accountability relationships worked, e.g.
through giving the District Executive Committee the role of approving or rejecting the
applications for funding of local development projects, a role that Oxfam used to have. This
might indicate that local actors were unwilling to assume the role of active actors and would
have preferred to be passive beneficiaries of interventions.
Oxfam made changes in accountability relationships and tried to take a more passive role. The
new system of providing funding through the District Development Fund, instead of through
Oxfam, however, caused concerns that it would actually lower the level of accountability.
Since the members of the District Executive Committee approved or rejected the applications
for funding, and the members were politicians, there was fear of politicisation of these
interventions. “When they [the DEC members] are making these approvals there are so many
biases. We find where there are strongholds, where they are more powerful within the
government, we find most of the projects will go there to leave the other areas where there is
little power. Government cannot do what Oxfam is doing because of issues of transparency
and accountability.”1258
One ‘monitoring tool’, that also aimed to increase the level of participation and
accountability, was regular meetings called ‘How is development progressing?’ (Chitukuko
Chikuyenda Bwanji). The VDC members met extension workers to discuss how the
development plan for the village was progressing, and to take stock of successes and
failures.1259 This was an opportunity for community members to confront the extension
workers with complaints about not fulfilling their obligations.1260 The political culture in
1257
Oxfam, “SHSLP Annual Report”, supra note 1149, at 6.
1258
Interview No. 8 with extension workers from Ministry of Agriculture and Ministry of Community
Development, Malawi 2006. FSD2727.
1259
Oxfam, “SHSLP Annual Report”, supra note 1149, at 9.
1260
Oxfam, “Integrating Rights into Livelihoods Programme”, supra note 1193.
189
Malawi was, however, still flavoured by almost 30 years of authoritarian regime, and
questioning people in authority was something people were not yet comfortable with.1261
Therefore, even if these monitoring meetings provided the space to confront government
extension workers, it may have been difficult to uphold an atmosphere where it was actually
possible to do so. “People still have the mindset that standing up and claiming rights might be
an issue that might face them with certain consequences. They are still fearful about that.”1262
The question is also whether it is effective to demand accountability from individual
extension workers at the district level when they in reality have no power to decide about
resource allocation for their department. As regard to demands about services as a matter of
meeting obligations, radio listening clubs might be more effective since the programmes are
aired on national radio. This means that the accountability element is taken all the way up to
the central government – at least indirectly. If there is enough attention towards the district
level government’s inability to act, the central government will have to respond. “So you find
Lilongwe, that is kind of the headquarters, calling the district offices, trying to find out what
they [the district office] proposed they would do in the village, and asking why it has not been
accomplished. They had promised to do something and they didn’t do it.”1263 This could mean
that it is feasible to use the radio as a tool to put pressure on the central government. “I’ve
seen some improvements in service delivery in some of the areas mainly in government
departments. I’ve seen some top officials taking action, even if they have not been to the area,
they have heard that the government officers are not providing. So some top officials have
reacted by taking positive actions.”1264
In the SHSLP demanding accountability from duty-bearers in the area of services was at the
heart of the programme. However, human rights were the platform for these demands on a
political, or rhetoric, not legal level. There was no legal analysis of what the various rights,
stemming from the Constitution of Malawi as well as international instruments, actually could
mean in terms of services. The leading organisation, Oxfam, was not a human rights watch
dog, naming and shaming duty-bearers, testing the legal provisions in courts, or other forums.
The legal framework was not seen as an avenue for holding duty-bearers accountable. This is
natural in an environment were most people, especially poor people, do not seek justice from
formal courts but rather from traditional leaders, religious leaders, family counsellors, and
other non-state actors.1265 In the SHSLP it was assumed that outcomes from development
interventions (roads, schools etc.) are, or should be, de facto rights for the people. It was the
act of identifying rights-holders and duty-bearers (and their obligations) that was key.
Accountability was in this context about a political process where citizens put pressure on the
government to deliver certain services, and these services were understood to be part of a
rights agenda. Accountability was linked to obligations, but without making explicit linkage
to legal provisions.
It can be argued that rights-based approaches to development such as that used in the SHSLP
contribute to taking human rights into new areas, in the search for, and struggle over, a new
1261
It should be noted that the Banda regime was known for brutally silencing all political opponents. Torture,
political killings and disappearances were widespread. Analysts agree that, although there is now freedom of
speech and assembly, violence, corruption, and nepotism are still part of Malawian political culture. See Harri
Englund (ed.), A Democracy of Chameleons: Politics and Culture in the New Malawi (Uppsala: Nordiska
Afrikainstitutet, 2002).
1262
Interview No. 29 with Malawi Resource Centre for Human Rights, Malawi 2006. FSD2727.
1263
Interview No. 5 with Oxfam, Malawi 2006. FSD2727.
1264
Interview No. 6 with Oxfam, Malawi 2006. FSD2727.
1265
Dan Banik, “Human Rights for Human Development: The Rhetoric and the Reality”, 30 Nordic Journal of
Human Rights (2012) 4-35, at 31.
190
rights regime.1266 In this new rights regime there is not necessarily any strong link to the
human rights instruments as these are being interpreted in present jurisprudence. For members
of radio listening clubs it made sense to equate services and rights, to claim needs as rights.
This is a defining feature of the protest school and is in opposition to what Baxi calls “human
rights as ethical imperatives”. An ethic of human rights insists on what communities and
individuals ought to desire.1267
3.3.9 Concluding remarks
It is striking that the SHSLP included a wide variety of activities; it seems that flexible
planning allowed for anything from provision to improved seeds to awareness rising from
land policy. In some of the interventions it was difficult to find even an implicit link to human
rights and also in the so called rights-based interventions explicit analysis of how the
particular activities contributed to human rights was lacking. The programme had no rights-
based goal, but had instead introduced rights as one component of the overall goal to
strengthen food security and reduce poverty. In the report by Oxfam ‘Rights Based
Approaches’ was, however, put as a separate heading,1268 instead of allowing RBA to inform
every aspect of the programme. This would suggest that the activities related to rights were
seen as new ‘add-ons’ to old working methods, implying no fundamental shift in the rationale
behind the development intervention.1269
This is one way of presenting how the programme fits into a broader context of what role
human rights play in development interventions. Another way (and the one I prefer) is to say
that everything that the programme did was informed by the aim of supporting the capacity of
the district level duty-bearers to deliver rights/services and at the same time generating
awareness of and demand for these rights among communities through training and through
radio listening clubs. It can be argued that the programme viewed all services as rights, and
enableling government extension workers to include e.g. improved seeds is therefore part of a
rights agenda. Oxfam and its partners were working to create a culture of human rights where
rights-holders would be able to claim needs as rights and where duty-bearers would be clear
that they have an obligation to respond.
This is a considerable shift in human rights discourse in Malawi that has focused on rights as
freedoms rather than rights as entitlements. Having such a strong focus on the responsibility
of the duty-bearer is also a change from a discourse that has previously emphasised the
responsibility of the rights-holder. Perhaps Oxfam, an actor outside of the human rights
movement, has another way of working with human rights that is less focussed on the legal
framework. In this approach, Oxfam and its partners were, moreover, not avoiding political
issues – but the pressure on duty-bearers remained at a district level instead of taking them all
the way up to the main duty holder, the Government.
In human rights terminology, ‘positive obligations’ could be used to describe government
services, including services needed after a violation has taken place, e.g. in the area of
delivery of justice, and ‘negative obligations’ to describe preventative action to hinder
violations from taking place, e.g. community policing, or labour inspections. Oxfam has
managed to make the district government extension workers to take the programme activities
1266
Gready and Ensor, “Introduction”, supra note 70, at 6-7. E.g. Oxfam has introduced its own list of rights that
it promotes. On this issue see Olivia Ball, “Conclusion”, in supra note 70, 278-300, at 290.
1267
Baxi, The Future of Human Rights, supra note 358, at 7.
1268
Oxfam, “SHSLP Annual Report”, supra note 1149, at 7.
1269
See Uvin, “On High Moral Ground”, supra note 51, at 2.
191
onboard in their work, instead of allowing them to merely cooperating with Oxfam, which is
often the norm in development cooperation. This is a good achievement but the question mark
is how well the role of the central government, as the ultimate duty-bearer of human rights
obligations, has been taken into consideration. It is worrisome that service delivery, defined as
rights by community members, was almost completely dependent on the support of an
international NGO.
As we have seen there was no strong link to the legal framework to support the line of
reasoning that services are rights. My impression is that everything that was seen as
‘development’ before was turned to ‘rights’, without any deeper analysis. The conscious
choice to deal with rights issues at this level (“we have tried not to look at rights as documents
but something that is part of everyday life”)1270 can be put into the conceptual framework of
an actor-oriented approach to rights-based development. In this context at least the following
factors should be taken into account. It is not sustainable to view all needs as rights; there
needs to be debate about the content of concrete rights. There is a risk that rights language
may, in the long run, loose its value and legitimacy if it is used without a clear basis in norms
and standards. Without a link to the legal framework the normative nature of human rights
could be weakened. However, rights language may lose its empowering effect if the approach
becomes too legalistic and abstract. The impression from the group interviews with
community members was that becoming aware that ‘I have a right’ was indeed empowering.
Empowerment was in this case a process that led these people to perceive themselves as able
and entitled to make claims and demand accountability.1271 With continued efforts to support
the mobilisation of rights-holders there is a chance that rights issues can become part of a
struggle for social justice in Mulanje, Thyolo and Phalombe.
Looking back at my hypothesis about the possible added value of human rights-based
approaches to development, i.e., has the introduction of ‘rights talk’ led to a shift in the
attitudes among Oxfam staff and government extension workers so that provision of services
is seen as a matter of obligation? It is difficult, if not impossible, to ‘prove’ that human rights
language has changed the mindset of the actors in the SHSLP, to move from a charity-based
to a rights-based approach to service delivery. However, it is clear that the ambition is to
convince district level government to move in that direction, although the legal reasoning to
back up this claim might be weak. However, the key issue is that there is a shift from viewing
services as ‘charity’ to dealing with them as ‘rights’. The challenge is that this shift is not
sustainable if it takes place only among local level duty-bearers and not in central
Government.
Neither Oxfam nor government partners had made any systematic effort to do a human rights-
based situation or problem analysis, but it is interesting to note how community members
themselves identified problems in terms of rights. Even though it is not clear how widespread
this practice was among the radio listening clubs, the one example referred to earlier indicates
that human rights can play a role when preparing to mobilise and demand accountability of
duty-bearers. In addition, the participatory rural appraisals could move in this direction, by
asking which rights remain unfulfilled, why this is the case, which duty-bearers should take
action, what changes are needed in policy and practice.
Although policy issues are on the agenda of the SHSLP, a systematic human rights-based
problem analysis would probably mean that there is more attention paid to addressing
structural causes of hunger (lack of land, lack of services, lack of influence) at policy level
1270
Interview No. 10 with Development Broadcasting Unit, Malawi 2006. FSD2727.
1271
Compare with Rowlands, Questioning Empowerment, supra note 897, at 14.
192
instead of addressing short-term needs (that can be seen as ‘symptoms’ of past policy
decisions). The risk with moving in that direction is that problem analysis may become less
participatory, carried out by ‘experts’ with a good knowledge of the overall policy
environment instead of the beneficiaries themselves. Beneficiaries play a crucial role in
current PRAs by e.g. choosing priority intervention for the own community. In a resource
constrained environment community members tend to prioritise short term interventions such
as provision of improved seeds – and giving them the liberty to do so is in line with the
principle of participation and empowerment. It is not easy to strike a balance between a
legalistic (elite) approach and a participatory (grassroots) approach.
The principle of accountability was in the SHSLP used as a basis to put pressure on
government institutions to live up to promises that were made during meetings between
service providers and community members. This line of reasoning is definitely a step away
from the managerial approach to accountability that was characteristic of the JEFAP. A
problem was that accountability demands stayed at the district level instead of targeting the
central government with power to decide over resources and policy priorities. This was done
in combination with efforts to increase transparency and participation by previously excluded
groups (e.g. women) in decision-making. Rights language again played an important role, as it
was argued that services are a matter of fulfilling human rights obligations.
Human rights indeed seemed to be a platform to demand that duty-bearers are held
responsible for their actions and non-actions in the area of services in the programme area, at
least on a rhetorical level. It is interesting to see how, in the process of formulating human
rights claims, the actors reshape and broaden what is normally understood to be human rights,
taking the human rights agenda into the area of services. There is no question that through
rights-based approaches, the development discourse challenges the traditional understanding
of ‘human rights’.
3.4 A legal approach to food security: Legislation as a tool for transformation
What is characteristic of a ‘legal’ approach to food security? How is the role of human rights
different compared to the other two projects? Through an analysis of the right to Food Project
I also attempt to answer broader questions on human rights discourse in Malawi. Can the
newborn interest in socioeconomic rights in Malawi contribute to a human rights discourse
that underlines the political implications involved in taking human rights obligations
seriously? Are the organisations involved in the Right to Food Project contributing to
challenging the status quo, i.e., is the Right to Food Project contributing to societal and
political change that strengthens the position/voice of rights-holders, and helps to increase the
protection of their human rights and possibilities to demand accountability from duty-bearers?
Is the right to food discourse, lobbying for national legislation on the right to food,
empowering for rights-holders?
There is no written material about the project and therefore I have relied on my interviews
with staff from key member organisations and two group interviews with members of a local
branch of Church and Society in Mulanje as the basis for this analysis.
3.4.1 Introduction to the Right to Food Project
The so called Right to Food Project was started within Church and Society in 2003.1272
Church and Society is the human rights department of the CCAP Blantyre Synod, established
1272
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
193
in 1993, around the transition to a multiparty democracy. As all other human rights groups in
Malawi,1273 Church and Society had originally focussed on civil and political rights but
gradually it felt the need to move into the area of economic and social rights. As a
consequence the Right to Food Project was setup with the support of faith-based donors in
Canada.1274
In the first year of the Right to Food Project a lawyer was contracted to draft a bill on the right
to food.1275 This bill, called the Food and Nutrition Security Bill, was presented to the
Parliamentary Committee on Agriculture and Natural Resources in order to gain their support
for the initiative. Furthermore, the right to food bill was presented during “awareness
meetings with the clergy”.1276 The Food and Nutrition Security Bill was therefore an initiative
by civil society. The draft analysed in this chapter has later been updated with input from the
Ministry of Agriculture, the Malawi Human Rights Commission and the Malawi Law
Commission. It has, however, not been adopted and the National Right to Food Network
continue to lobby for the enactment of the draft bill. The main obstacles are said to be the
misunderstandings around the concept of progressive realisation and fear that the bill places
obligations on government that are too heavy.1277 Thus far, one act (The Prevention of
Domestic Violence Act, April 2006) has been successfully passed in Malawi based on a bill
from civil society organisations.1278
After the initial stage of the project Church and Society decided to contact other civil society
organisations in order to establish a national Right to Food Joint Taskforce. This taskforce is a
loose network of human rights organisations as well as developmental NGOs working in the
area of food security. Although the project is an example of joint advocacy by human rights
and development NGOs1279 it would be an overstatement to say that these two set of
organisations have truly joined forces under one project. The member organisations say their
common aim is the adoption of an act on the right to food, but they work individually and
focus on different ways to strengthen the right to food. While Church and Society has drafted
a bill, Action Aid, for instance, has focused on lobbying for the inclusion of a reference to the
right to food in the Malawi Food Security Policy.1280 Advancing the status of the right to food
as a legal norm is, however, a common objective for the organisations and therefore it is
possible to analyse the activities of the taskforce as a legal approach to food security. The
Taskforce later evolved into a registered NGO called the National Right to Food Network.1281
1273
Before 1993, there were no human rights organisations in Malawi. It was especially in the late 1990s that
human rights NGOs began “sprouting up” in Malawi. Interview No. 19 with NGO, Malawi 2006. Harri Englund
points out that it was after 1999 that civic education on rights and democracy gained momentum in Malawi. See
Englund, Prisoners of Freedom, supra note 414, at 96.
1274
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1275
Interview No. 15 with Church and Society, Malawi 2006. The copy of the draft bill that the author has
received from Church and Society is entitled Food and Nutrition Security Bill. According to the draftsperson the
draft bill was presented in early 2005. Interview No. 16 with draftsperson of Food and Nutrition Security bill,
Malawi 2006. FSD2727.
1276
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1277
E-mail interview with Church and Society, August 2012.
1278
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1279
On this general trend of closer cooperation between human rights and developmental NGOs, see Paul J.
Nelson and Ellen Dorsey, “At the Nexus of Human Rights and Development: New Methods and Strategies of
Global NGOs”, 31 World Development (2003) 2013-2026.
1280
In the Food Security Policy, there is a statement that “[c]ognisant of the provisions for the protection of
human rights and freedoms as enshrined in the Constitution of Malawi, the right to adequate food is fully
accepted as a human right.” Ministry of Agriculture and Food Security, Food Security Policy, August 2006, at 5.
1281
E-mail interview with Church and Society, August 2012.
194
At the time I visited Malawi, there was a constitutional review process underway and a
Special Law Commission had been set up for this purpose. Civil society organisations,
including member organisations from the Right to Food Taskforce, were represented on the
commission. Some efforts to include specific reference to the right to food were taking place.
“We thought we could push for the express recognition of the right to food in the constitution.
And the civil society did make its proposal to the [Special] Law Commission and since we are
represented in the Special Law Commission that will review the Constitution, we hope those
representations are going to be taken into account.”1282 In a similar vein: “The right to food is
not clearly specified in the Constitution and we would like it to be properly recognized.”1283 It
seems that different member organisations concentrated on advocating for stronger protection
of the right to food through different avenues: some focused on stronger constitutional
protection, others on stronger policy and yet others on a specific act on the right to food.
3.4.2 Background: The famine of 2001/2002
In order to understand the discussions about the right to food in Malawi it is necessary to look
back at the 2001/2002 famine. Action Aid, which is a member organisation of the Right to
Food Taskforce, facilitated research concerning the causes and consequences of the famine
and in this context the right to food was briefly broached for the first time.1284 It was
especially the accusations of mismanagement on the part of the government that raised the
issue of the right to food. “It happened that in 2001 we had a food crisis which was triggered
by mismanagement.”1285 The informant is here referring to the fact that in 2001 the National
Food Reserve Agency (NFRA) sold almost all of the Strategic Grain Reserve (SGR) at a
critical point. The NFRA had a mandate to maintain buffer stocks of grain and in 1999 and
2000 the SGR held a near full storage capacity of 180,000 MT of maize. Part of the story is
that this stock was bought with money borrowed at an annual interest rate of 56 per cent. This
again is explained through the privatisation of the management of the reserves. Before 1999,
SGR was managed by Admarc, which is the agricultural marketing parastatal agency. Donors,
including the IMF and the EU, however, decided that national grain reserves should be “run
independently and on a cost-recovery basis” (i.e. should be privatised) and therefore the
NFRA was created in 1999.1286 As no government funds were available, the newly established
agency took loans from commercial and government banks to purchase maize from
Admarc.1287
The chain of events and decisions that led to the deletion of the SGR is at the core of the
argument that the famine had ‘political’ reasons – not ‘technical’. (The ‘technical’ explanation
is that the famine was a result of production failure, information constraints, a depleted food
reserve, import bottlenecks, and high food prices.) According to the political explanation, it is
1282
Interview No. 16 with draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1283
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1284
Devereux, “State of Disaster”, supra note 122.
1285
Interview No. 20 with NGO, Malawi 2006. FSD2727.
1286
In the 1980s, the proponents of structural adjustment found that ADMARC’s market infrastructure was
already inefficient, required heavy subsidies, drained the national treasury, and created disincentives for private
sector entry into the maize market. Privatisation of ADMARC was recommended in the Malawi Poverty
Reduction Strategy Plan but the government resisted implementing all the changes towards full privatisation to
avoid risking popular support. See Caroline Sahley et al, “The Good Governance Dimensions of Food Security
in Malawi”, USAID, September 2005, 46-47. Available at http://pdf.usaid.gov/pdf_docs/PNADE034.pdf, visited
February 2012.
1287
Devereux, “State of Disaster”, supra note 122, at 9. See also Samdup, “The Human Right to Food in
Malawi”, supra 145, at 50; Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra
note 1286, at 48.
195
claimed that the IMF instructed the Government of Malawi to sell the maize in the Strategic
Grain Reserve in order to repay the debt incurred by the setup of the NFRA. The IMF for its
part maintains that it only advised the government to sell part of the SGR to service its
debt.1288 The SGR sell-off was raised by one informant as a human rights violation: “It didn’t
make sense to just sell the SGR and then maize is scarce. That was more or less carelessness
and a human rights violation because you can’t play with such an important commodity just to
make sure you want to make profit, it was supposed to serve the needs of the people. By then
the signs of the food crisis were visible and people were dying and everything.”1289
Moreover, private traders were accused of having profiteered from the sale of the SGR
(buying maize when prices were low and holding it until prices rose; making large profit).1290
In addition, this issue was linked to the right to food. “The allegation that private traders
deliberately purchased SGR maize cheaply in order to hoard and resell it at excessively high
prices during the food shortage is an extremely serious accusation. Profiteering from hunger
violates the basic human right to food.”1291 There had even been speculation that local
politicians were involved in these activities. A list of people who had purchased maize from
the SGR was published, and this list included a number of prominent names.1292 Moreover,
the Anti-Corruption Bureau accused several Malawian politicians of benefiting from the sale
of the reserves. A Presidential Commission of Inquiry was set up to investigate the sale of
SGR maize.1293 The report by the Presidential Commission blamed donors for the
mishandling of the SGR (for putting forth the idea of forming the NFRA to take over
responsibility of the SGR from Admarc when the government had no readily available
resources for this purpose). The Anti-Corruption Bureau had a different view on the scandal
and recommended in July 2002 that the Director of Public Prosecutions order investigations
into charges of criminal recklessness and neglect acts against seven people. The list included
the Director of Admarc, Friday Jumbe, who later became the Minister of Finance.1294
Despite these efforts, my informants were not satisfied with the level of accountability. “The
crisis that happened in 2002 and politicians were found to have participated in mismanaging
the food stocks, never have they been taken to court. I know from rights perspective some
activists have said that by then if we did have a right to food law that would have made
litigation possible.”1295
Against this background, the drafter has made an effort to address profiteering issues in the
Food and Nutrition Security bill. Draft Section 6 states:
Any person who practices unfair trade practices which:
b. takes advantage of vulnerable persons by exerting undue pressure or undue
influence on such person to enter into a transaction related to food production,
marketing, storage, supply, processing or consumption;
Shall be guilty of an offence under this part.
1288
Devereux, “State of Disaster”, supra note 122, at 1. See also Roshni Menon, “Human Development Report
2007/2008: Famine in Malawi – Causes and Consequences”, Human Development Report Occasional Paper, at
6. Available at http://hdr.undp.org/en/reports/global/hdr2007-8/papers/Menon_Roshni_2007a_Malawi.pdf,
visited 10 May 2012.
1289
Interview No. 22 with civil society network, Malawi 2006. FSD2727.
1290
Devereux, “State of Disaster”, supra note 122, at 2.
1291
Ibid., at 3.
1292
Devereux, “State of Disaster”, supra note 122, at 11.
1293
Samdup, “The Human Right to Food in Malawi”, supra 145, at 50.
1294
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 48.
1295
Interview No. 20 with NGO, Malawi 2006. FSD2727.
196
Furthermore, other sections of the draft bill tried to address problems such as those
encountered in 2001/2002. Section 4d included a reference to “rules regarding management of
strategic grain reserves including draw down there from” and in 4e “prescribing minimum
strategic food reserve levels.” This can be seen as an attempt to make sure there is better
regulation of the SGR, which is also a top priority for all donors. In 2004, the government and
donors formed a joint oversight committee of the NFRA to monitor and authorise release of
the SGR.1296
Going back to the events in 2001/2002, a State of Disaster was finally declared by President
Muluzi on 27 February 2002, although information indicating famine was already available in
late 2001, but the credibility of this information was questioned. Save the Children had
published a report in October 2001 that indicated that maize prices had risen by 340 percent
and maize production had fallen drastically.1297 The organisation recommended an emergency
response but this was rejected. The Malawi Economic Justice Network mobilised activist
groups, campaigned in the media, and pressured the government to declare a famine.
International media (BBC, CNN and others) broadcasted reports from Malawi in February
and March 2002, which showed that in the case of Malawi the media was a late indicator of
stress, not an early warning.1298 Sen and Dréze have argued that informal systems of warning
such as newspaper reports and public protests serve the dual function of bringing information
the authorities can use and elements of pressure that “may make it politically compelling to
respond to these danger signals and do something about them urgently.”1299 The argument
contends that famines are therefore best prevented in pluralistic political systems with open
channels of communication.1300 The Malawi famine of 2001/2002 shows that famine is not
always prevented despite available information and pressure from the public.
It is clear that the President was late in declaring a state of emergency; the disaster had
already taken severe forms. There are no official estimates of excess mortality due to the
famine and exact figures of the number of deaths are not available. Lists of names collected
by civil society groups indicate that between 1,000-3,000 people died from famine related
deaths. If one is to compare with previous sever famines in Malawi’s modern history, the
Nyasaland famine of 1949 resulted in an estimated 200 deaths.1301
It was not only the government that did not take the information about the serious food
shortages seriously; also donors were slow in responding, although they eventually provided
food aid. This can perhaps be explained through the fact that the relationship between the
government and the donors was not the best: in November 2001 several major donors
(including UK, EU, Denmark and the US) had suspended their aid programmes because of
alleged corruption, economic mismanagement, and political violence by government
supporters against the opposition.1302 During the past years much has changed and Malawi’s
President Bingu Mutharika (2004-2012),1303 enjoys a better relationship with donors; the
general perception is that the Mutharika administration tried to ‘check corruption’.1304 It also
1296
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 34.
1297
The report of 2001 is cited in Reliefweb, “Nutrition Survey Report, Salima and Mchinji Districts”,
September 2002, at 2. Available at http://reliefweb.int/node/409474, visited February 2012.
1298
Devereux, “State of Disaster”, supra note 122, at 7-8.
1299
Sen and Drèze “Hunger and Public Action”, supra note 32, at 263.
1300
Ibid., at 264.
1301
Devereux, “State of Disaster”, supra note 122, at 18.
1302
Ibid., at 14-15.
1303
President Bingu Mutharika died of a heart attack in April 2012. Vice president Joyce Banda, know as a
women’s rights campaigner, acts as president until the following elections in 2014.
1304
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 34.
197
seems lessons were learned from the awful experiences in 2001/2002. “The famine in 2001,
that was a huge embarrassment, it was burnt in as failure in most politicians minds. And I
think lessons learned after that, incorporated a lot of that into the 2004/5 famine.”1305
According to the Action Aid report the famine in 2001/2002 had such devastating effects
compared to the famine in 1991/1992 because economic liberalisation had removed the strong
involvement of Admarc. Ten years earlier Admarc had depots in the remote rural
communities and made food available at affordable prices. To move from a system where
Admarc controlled input supply as well as food prices to full liberalisation where food
supplies and prices were suddenly determined by the market proved difficult.1306 “We have a
liberalized market system and liberalizing a market in a country where market structures are
not developed you are only promoting exploitation. The government is currently not very
willing to intervene into the market. We strongly feel it should come in more strongly.”1307
This is, however, the view of one member organisation and there is no consensus on the way
forward. Donors, who have a strong voice in policy decisions, government, and civil society
disagree about the appropriate role of the state in addressing vulnerability and food insecurity.
Admarc’s social role, in particular, was subject to widespread debate at the time of my field
research. Nevertheless, Admarc continued to be popular among the general public and no
politician was willing to go too far with the privatisation, and thereby risk popular support.1308
In addition to the changed role for Admarc came the fact that the so called Starter Pack
programme, distributing packs of fertilizers and seed to nearly three million farmers, had been
scaled down beneficiaries in 2000/01, and had not been replaced by any other large-scale food
security programme.1309 The above factors need to be taken into account when analysing the
role of the right to food as a potential avenue for addressing food insecurity and famine.
3.4.3 Giving meaning to the right to food in Malawi: A word on process
In the following, I analyse the draft bill produced within the Right to Food Project, The Food
and Nutrition Security Bill. Drafting a bill on the right to food is a process of giving meaning
and content to a human rights norm and as such the process is interesting. Who is taking part
in the process, and who is excluded? In what context does the ‘definition’ take place?1310
The bill analysed here is the draft of 2006. It has been updated later on but I have not had
access to these versions. The first bill was drafted by a lawyer without consulting any
‘stakeholders’. What was done in order to increase ‘participation’ was that member
organisations took up the right to food and the draft bill during awareness raising meetings1311
but there were no wider consultations.1312 “Normally when we are drafting a law it will
1305
Interview No. 30 with donor, Malawi 2006. FSD2727.
1306
Devereux, “State of Disaster”, supra note 122, at 2. ADMARC has a history dating back to 1971. Before
being partly privatised in the late 1980s, ADMARC was the sole trader of maize. Any farmer could sell beans,
tobacco, and other produce to ADMARC if no one else would buy it at a set price. It also held a monopoly on
inputs such as fertilizers, seeds, and farm implements. See Sahley et al, “The Good Governance Dimensions of
Food Security in Malawi”, supra note 1286, at 46.
1307
Interview No. 20 with NGO, Malawi 2006. FSD2727. The contradiction between the Government’s human
rights responsibilities and the impossibility of intervening in pricing because of the liberalised market system
was also noted in Interview No. 1 with Malawi Human Rights Commission. FSD2727.
1308
Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”, supra note 1286, at 29 and
49. See also Meinhardt and Patel, Malawi’s Process of Democratic Transition, supra note 970, at 59.
1309
Levy, “Introduction”, supra note 126, at 8.
1310
See Ife, Human Rights from Below, supra note 8, at 134.
1311
Interview No. 15 with Church and Society, Malawi 2006; Interview No. 19 with NGO, Malawi 2006.
FSD2727.
1312
This was confirmed in the two group interviews with members of Church and Society in Mulanje. FSD2727.
198
require this participation phase before we even begin to draft the law. That was not the case
with this one.”1313 This meant only a very small group of people (all men) were included in
the drafting and thereby also the meaning-giving process: the lawyer who drafted the bill and
the leader of Church and Society who initiated and advised him. Because of this ‘top-down’
approach there were member organisations that felt the draft should be reviewed before the
issue was be taken any further. “It was drafted by a lawyer. We feel it need to be reviewed, it
need to have the mandate of the people.”1314
Lack of participation and dialogue in the process of giving meaning to human rights is
characteristic of a legal approach to human rights. Human rights are accepted as being defined
in legal documents, which are, for obvious reasons, drafted by small groups of people, usually
politicians, diplomats, academics, opinion leaders, and a few human rights activists.1315 As
can be recalled, in this way human rights is a discourse of the powerful about the
powerless,1316 thereby contributing to a discourse of domination and disempowerment.
A drafting process that would have included wide consultations could possibly have
contributed to a public dialogue about the meaning, source, and authority of human rights and
the right to food as well as forms and strategies for claiming them. However, this opportunity
to discuss the relevance and meaning of the right to food for the lived reality of the people in
Malawi was not taken by the organisations.
The drafting took place within the framework of Malawi’s regional and international
commitments to the right to food.1317 From my analysis of the content of draft bill it seems
that the ICESCR has been the main source of inspiration rather than the African Charter on
Human and People’s Rights. The draft bill uses the same kind of ‘progressive realisation’
language as the ICESCR and that it is not used in the African Charter and also not in Section
30 of the Malawi Constitution.
The context is which the drafting process in Malawi took place had transnational origins.
Church and Society took part in the process of drafting the Voluntary Guidelines to support
the progressive realisation of the right to adequate food in the context of national food
security (the ‘Right to Food Guidelines’),1318 led by the Food and Agriculture Organisation
based in Rome (i.e., by a global elite). There is little resemblance between the ‘Right to Food
Guidelines’ and the draft bill with regard to the content, other than that the definition of ‘food
security’ is the same. The impulse to legislate on the right to food in Malawi originated from
the discussions and negotiations on the international guidelines,1319 and that in itself is
relevant when trying to understand the process and what impact it has had on human rights
discourse in Malawi. When a small group of people, associated with an international and
national elite, speaking a specialised, often technical language1320 come together to draft/give
1313
Interview No. 16 with Draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1314
Interview No. 20 with NGO, Malawi 2006. FSD2727.
1315
Ife, Human Rights from Below, supra note 8, at 126.
1316
Ife, Human Rights from Below, supra note 8, at 126. Emphasis in original. Merry also reminds us of the
urgency to include women in the making of the human rights framework so that we can move toward disrupting
the patriarchal shape of that framework. Merry, Human Rights and Gender Violence, supra note 287, at 231.
1317
Malawi ratified the African Charter on Human and Peoples’ Rights 17 Nov 1989 and the International
Covenant on Economic, Social and Cultural Rights 22 Dec 1993.
1318
Adopted by the 127th Session of the FAO Council, November 2004.
1319
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1320
See Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley:
University of California Press, 2005) at xviii; Robert Archer, “The Strengths or Different Traditions: What Can
Be Gained and What Might Be Lost by Combining Rights and Development?”, 4 Sur International Journal on
Human Rights Law (2006) 81-89, at 86.
199
meaning to the right to food this inevitably has an impact on how human rights are perceived
and applied by less powerful groups.
This can be seen against the process of ‘transnationalisation of law’ that takes place as a
consequence of the emergence of a set of new legal actors. International and local NGOs,
social movements, and the UN system all play a role in law making processes, and the draft
bill on the right to food in Malawi is an example of this. Randeria points out that this is as
such not new for post-colonial states that never had absolute monopoly over law
production.1321 National legal landscapes have always been complex and shaped by diverse
external influences, but the growing dominance of international law, the transnationalisation
of state law and the direct involvement of multilateral institutions, donors and transnational
NGOs have all contributed to a new “supra-national dimension of legal pluralism”.1322 The
draft bill is certainly an example of national civil society, with transnational links,
contributing to legal pluralism.
3.4.4 From freedoms to entitlements?
As previously mentioned, the human rights rhetoric and discourse in Malawi has emphasised
freedoms rather than entitlements, civil and political rights rather than socioeconomic rights.
The concept of entitlements is not used, as such, in e.g. the ICESCR. It was developed by
Amartya Sen in the late 1970s, and became widely known after the publication of his book
Poverty and famines (1981) and in his later book Hunger and entitlements (1988). The central
message was that focussing on food supply is not enough – what matters is who has command
over these supplies. Food and other goods and services over which a person has command, are
his or her ‘entitlements’.1323 The concept of entitlements is thereby, according to Kracht and
Huq, closely related to that of legal ownership rights.1324 Eide, who also bases his writing on
entitlements on Sen’s scholarship, writes that “entitlements exist when one party effectively
controls productive resources or can insist that another delivers goods, services, or
protections, and that parties will act to reinforce (or at least not hinder) their delivery.”1325
Kent views entitlements as “nationalized versions” of global human rights and the obligations
that come with them.1326
I use the concept here because I think it describes the idea of positive state obligations and it
helps in avoiding simplistic assumptions based on ideas that fulfilment of the right to food for
all can be achieved by mere distribution of food resources. While the positive obligation to
fulfil the right to food does occasionally (and in the case of Malawi, probably more often than
not) involve food distribution, or other forms of social protection such as cash distribution, it
1321
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 152.
1322
Randeria, “Domesticating Neo-liberal Discipline”, supra note 423, at 151. “By pointing to the coexistence of
a plurality of legal orders within one single political unit, […] legal pluralism interrogates the centrality of state-
made law and its exclusive claim to the normative ordering of social life.” Ibid., at 151.
1323
Amartya Sen, Hunger and Entitlement (Finland: World Institute for Development Economics Research,
United Nations University, 1988) at 8.
1324
Uwe Kracht and Muzammel Huq, “Realizing the Right to Food and Nutrition through Public and Private
Action”, 21 Food Policy (1996) 73-82, at 74.
1325
Asbjørn Eide, “The Right to an Adequate Standard of Living Including the right to Food” in A. Eide, C.
Krause & A. Rosas (eds), Economic, Social and Cultural Rights: A Textbook, Second Revised Edition (Dordrecht:
Martinus Nijhoff Publishers, 2001) 133-148, at 139.
1326
Kent, Freedom from Want, supra note 83, at 91.
200
is necessary also to improve the prevailing “legal, political and economic arrangements”1327
with the aim of strengthening poor people’s entitlements.1328
The Malawian human rights discourse has, in addition to a strong emphasis on ‘freedoms’,
also focused on the responsibilities of the individual that are said to come with human rights.
(This is in line with the African Charter on Human and People’s Rights that departs from
other human rights instruments and imposes duties on individuals. These duties are owed to
other individuals, the family, society, and also the state.)1329 Only recently has there been a
shift to a stronger focus on obligations by duty-bearers. “At first it was everybody for
themselves: you have rights, it’s up to you. Now we are saying you have rights but certain
people have obligations to ensure you enjoy your rights to the outmost.”1330 Within the Oxfam
rights-based approach the actors used this kind of language of rights and obligations.
Obligations, especially of a legal nature, were also important in the Right to Food Project and
the draft bill. Overall, the main purpose of the draft bill was to make the right to food
justiciable,1331 that is, enforceable through legal and para-legal institutions. Due to limited
access to formal legal forums, the organisations behind the draft bill aimed at a system where
the right to food could be claimed outside the court system: “We hope the right can be
claimed not only in formal magistrate courts and the like. Once we have the law we are going
to call on the government machinery to be more responsible and the claiming might be
through group actions, advocacy and lobbying, more of that sort rather than maybe an
individual going to court.”1332
The draft bill established a the Malawi Food and Nutrition Authority. The Authority would be
competent to receive complaints. According to the draft bill, individuals and groups, or
organisations representing such groups, may bring complaints and petitions before the
Authority and it may find a violation of the right to food and nutrition security.
Draft Section 50: “Any person guilty of an offence under this Act or regulations made
hereunder for which no penalty has been prescribed shall be liable to a fine of K750,000 or to
imprisonment of 5 years.” The explanation behind this rather exceptional approach may be
found in the fact that the Malawi Constitution allows its Bill of Rights to apply in the private
sphere.1333 Private actors are bound by human rights provisions and when courts are resolving
private disputes, they have the duty to consider human rights, including socio-economic
rights.1334 This practice is reflected in the fact that the Malawi Office of the Ombudsman is
competent to investigate complaints in both public and private spheres, which has led to a
massive volume of cases received.1335
It seems that the draft bill would establish personal criminal responsibility for offences under
the act, rather than ordering the government to remedy the situation through taking positive
measures as has been the case when finding a violation of the right to food in India and South
1327
Used in Jean Drèze and Amartya Sen, Hunger and Public Action (Oxford: Clearndon Press, 1989) at 9.
1328
Kracht and Huq, “Realizing the Right to Food and Nutrition through Public and Private Action”, supra note
1324, at 75.
1329
Articles 27-29 of the Charter define duties of individuals. See also Mutua, “Standard Setting in Human
Rights”, supra note 296, at 577.
1330
Interview No. 19 with NGO, Malawi 2006. The challenge is that duty-bearers have not recognized that rights
imply that they have certain obligations. Interview No. 29 with Malawi resource Centre on Human Rights.
FSD2727.
1331
Interview Nos. 15, 16, 19 and 20, Malawi 2006. FSD2727.
1332
Interview No. 19 with NGO, Malawi 2006. FSD2727.
1333
Chirwa, “A Full Loaf is Better than Half”, supra note 1031, at 235.
1334
Ibid., at 235.
1335
Final Evaluation: Strengthening of the Ombudsman Institution in Malawi, supra note 1029, at 50-51.
201
Africa.1336 As we have seen in part II, in India the right to food litigation has lead to the
Supreme Court converting eight nutrition-related schemes of free food distribution, subsidised
grain for the poorest of the poor, midday meals, family benefit schemes etc into legal
entitlements, making it obligatory for the government to implement them.1337
The Authority was given a broad mandate in the draft bill. Draft Section 36 stated:
The Authority shall be competent in every respect to protect and promote the right
to food and nutrition security in Malawi in the broadest sense possible and to
investigate violations of such right on its own motion or upon complaints received
from any person, class of person or body.1338 (Emphasis added.)
This kind of ‘violations language’ was not used throughout the draft bill. Progressive
realisation of “the right to food and nutrition security” (draft Section 3(1)) was advocated. In
this context, the right to food was linked to the Millennium Development Goals. The Draft
Section 3(4) stated that “The Government shall progressively eliminate hunger by improving
wages and incomes of people in order that by 2015 there shall be no person earning less than
$1 a day.” Also the notions of “taking steps” and “maximum available resources” (familiar
from the ICESCR) were used in the draft bill. There was even a direct reference to
“international covenants”:
The government shall take steps, legislative, economic, technical or otherwise to
the maximum of its available resources with a view to achieving progressively the
full realization of people’s rights enshrined in the international covenants related
to the right to food and nutrition security to which Malawi is a party. (Sec. 3(6))
Draft Section 3 took very little consideration of specific national conditions in Malawi, even
to the extent that the international poverty line was used instead of the national poverty line.
Furthermore, the wording of the draft bill seemed to lower the level of positive state
1336
The Indian Supreme Court ordered in the 1985 case of Kishnan Pattnayak and Others v State of Orissa that
State government try to solve the problems of poverty rather than just focusing on immediate disaster relief. In a
South African case of 2003 (Kutumela v Member of the Executive Committee for Social Services, Culture, Arts
and Sport in the North West Province) the North West provincial government was ordered to, inter alia, plan a
programme to ensure the effective implementation of the Social Relief and Distress Grant. See Sibonile Khoza
(ed.), Socio-Economic Rights in South Africa (South Africa: Community Law Centre, Second Edition, 2007)
328-329.
1337
Interim Orders of the Supreme Court, 28 November 2001. Available at
http://www.righttofoodindia.org/orders/interimorders.html, visited 15 December 2011. See Basudeb Guha-
Khasnobis and S. Vivek, “The Rights-Based Approach to Development: Lessons from the Right to Food
Movement in India”, in B. Guha-Khasnobis, S. S. Acharya & B. Davis (eds), Food Insecurity, Vulnerability and
Human Rights Failure (Hampshire: Palgrave Macmillan, 2007) 308-327, at 310. See also Muralidhar, “India”,
supra note 677, at 102-123.
1338
This mandate is very similar to that of the Malawi Human Rights Commission, which was established under
Chapter XI of the Constitution as a national human rights institution, starting its functions after the Human
Rights Commission Act of 1998. Act No. 27 of 1998, The Malawi Gazette Supplement, 11 August 1998,
reprinted in Kamal Hossain et al. (eds.), Human Rights Commissions and Ombudsman Offices: National
Experiences throughout the World (The Hauge: Kluwer Law International, 2000) 540-550. In 2004 a total of
1,136 complaints relating to human rights violations were handled by the Commission. Twenty two (22) cases
concerned the right to development and economic activity. Most of the cases have not been concluded. “Annual
Report of the Malawi Human Rights Commission for the Year 2004”, at 1. Available at
http://malawihumanrightscommission.org/docs/2004_MHRC_AnnualReport_.pdf, visited 15 December 2011.
There have been attempts to make the Human Rights Commission as accessible as possible in that exhaustion of
other remedies is not a requirement for lodging a complaint and free legal aid can be applied for in cases before
the Human Rights Commission. E.M. Singnini, “Malawi’s Human Rights Commission” in Kamal Hossain et al.
(eds.), Human Rights Commissions and Ombudsman Offices: National Experiences throughout the World (The
Hauge: Kluwer Law International, 2000) 527-532, at 531.
202
obligations from the standard set in the Section 30 of the Constitution.1339 Draft Sections 4
and 5, on the other hand, tackles specific problems experienced in Malawi, i.e., disasters and
food aid. The problem of politicisation of food aid was dealt with in draft Section 5:
(1) No person, entity or political party shall use food aid for political purposes.
(2) No person shall with hold food aid from any vulnerable person for any reason
based on political opinion, tribe, region, marital status, disability, or other status,
nor shall food aid be used to induce change of political affiliation.
The intention was to criminalise politicisation of food aid or inputs. In draft Section 6,
prohibited acts and omissions were defined. The question is whether this kind of violations
and criminalisation discourse can underline and strengthen the accountability of duty-bearers,
thereby also underlining the obligations side of human rights.
Considering that more than 85 percent of all economically active Malawians were employed
in agriculture at the time o drafting,1340 developing the agricultural sector is a key issue for
food security. The draft bill, however, failed to link the right to food to broader issues of
livelihoods or to government services in agriculture (for instance in the form of extension
workers).
There are some question marks concerning what kind of state the member organisations are
advancing in their advocacy through advocating the draft bill. There seems to be some
hesitation even within the Right to Food Project as to what should be the social role of the
government.
I don’t know how many people at the grassroots level who would think in terms
of the social responsibilities of the Government. Our Constitution seems to be
focused on economic liberalization, that people should be empowered so that they
can stand on their own. Instead of the government giving direct services, some of
us think this is just complementing or helping the government out but we need to
get to a day when everyone stands for themselves. What the government should
do is to provide the working environment that is conducive.1341
While this is not in direct opposition to the thinking on entitlements, this kind of rhetoric
mainly suits the current market driven development agenda, and it can hardly be seen as an
effort to advocate for a more ambitious agenda for social justice. Instead of creating a strong
social role for the government in this area, along the lines of strengthening poor people’s
entitlements, the draft bill promoted “broad based economic development that is conducive to
the promotion and sustainability of food and nutrition security” (3(7)).
One can also argue that since the drafting of the bill had taken place in a non-participatory
manner and the content includes no rights-based services (something that we have seen made
sense to community members in the SHSLP), this is what Baxi calls an ethic of human rights
that insists on what communities and individuals ought to desire.1342 The drafters had decided
1339
Section 30(2) of the Constitution reads: “The State shall take all necessary measures for the realization of the
right to development. Such measures shall include, amongst other things, equality of opportunity for all in their
access to basic resources, education, health services, food, shelter, employment and infrastructure.”
1340
This figure is from 2003. See Sahley et al, “The Good Governance Dimensions of Food Security in Malawi”,
supra note 1286, at 7.
1341
Interview No. 19 with NGO, Malawi 2006. A similar statement was made in Interview No. 1 with Malawi
Human Rights Commission: “It has been understood as if that right [the right to food] is only about the State
creating an environment where you can fend for yourself, not that the State has a direct responsibility to take
care of you.” FSD2727.
1342
Baxi, The Future of Human Rights, supra note 358, at 7.
203
what communities and individuals ought to desire, and that did not include services in
agriculture.
3.4.5 Policies as politics
Putting the Right to Food Project into a larger picture of how human rights discourse
traditionally has dealt with issues of inequality, there is a clear global tendency to favour legal
solutions to social problems. Gready and Ensor warn against what they call the ‘legal reflex’
within human rights discourse, i.e., the assumption that “resort to law is the most effective and
perhaps only form of protection and remedy”. Establishing legal recognition of human rights
can at worst become an end in itself, and this again can lead to a reduction in creativity with
regard to activism. These arguments do not deny the importance of the law, instead they seek
to give equal importance to political and social processes in securing human rights.1343 Gready
and Ensor point out that an engagement with rights potentially stimulates a political
transformation. This challenges the established, often hierarchical structures within society,
and is therefore never a simple process.1344 Furthermore, Hugo Slim observes that most
importantly, rights-talk has the ability to politicise development1345 issues such as food
insecurity. However, Ratna Kapur points out that it is important to be aware how law can
transform the “political discourse of human rights and depoliticize it”; law as a discourse
tends to obscure power relations and decontextualise political claims.1346 In other words,
depolitisation also takes place in human rights discourse, and according to Kapur this occurs
because of the strong role given to law and legal solutions.
The Right to Food Project is not an apolitical approach although there are differences in
emphasis, especially concerning what social role the state should play, among the
organisations taking part in the project. Clearly, law plays a political role in transforming
society. Moreover, research from neighbouring Zambia shows that legal practitioners have
“become intimately engaged with the state, and in doing so has become a form of politics.”1347
The situation is similar in Malawi and the legal profession contributed immensely to the
political transformation of the early 1990s.1348
Some organisations within the Right to Food Taskforce seemed to have committed
themselves to advocacy so that the Government makes better policies,1349 indicating a
commitment to using rights as form of political pressure. This approach was, however, not
visible in the draft bill.
The main policy issue that was discussed during my field research visit was the on-going
fertilizer input subsidy programme that was a government driven, yearly initiative to support
small scale subsistence farmers since 2005. While the draft bill promoted “expanded access to
agricultural inputs” (3(9)), subsidies as such were only mentioned in connection to vulnerable
groups. Therefore, it is unclear whether fertilizer or other input subsidies were promoted in
1343
Gready and Ensor, “Introduction”, supra note 70, at 9. This is also discussed in Sano, “Does Human Rights-
Based Development Make a Difference?”, supra note 55, at 66.
1344
Gready and Ensor, “Introduction”, supra note 70, at 23.
1345
Slim, “A Response to Peter Uvin”, supra note 57, at 3.
1346
Kapur, “Revisioning the Role of Law”, supra note 382, at 110-111.
1347
Jeremy Gould, “Strong Bar, Weak State? Lawyers, Liberalism and State Formation in Zambia”, 37
Development and Change (2006) 921-941, at 937.
1348
See in Clement Ng’ong’ola, “Judicial Mediation in Electoral Politics in Malawi”, in Harri Englund (ed.), A
Democracy of Chameleons: Politics and Culture in the New Malawi (Uppsala: Nordiska Afrikainstitutet, 2002)
62-86, at 85.
1349
Interview No 22 with civil society network, Malawi 2006. FSD2727.
204
the draft as a broad-base form of government intervention to support the right to food. In this
context we should keep in mind that widespread application of fertilizers on the soils of
Malawi is not environmentally sustainable – and the Committee on Economic, Social and
Cultural Rights has made clear that sustainability is an aspect that needs to be taken into
account in efforts to realise the right to food. “Sustainability” incorporates the notion of long-
term availability and accessibility so that food is accessible for both present and future
generations.1350 In any case, the silence on this issue on behalf of the Right to Food Taskforce
reveals a reluctance to make use of rights as an argument on this highly politicised issue.
Moreover, the Taskforce has not carried out thorough analysis of which policies contribute to
food insecurity and hunger and which policies reduce the level of food insecurity and hunger.
In 2006, Church and Society hosted an international fact-finding mission coordinated by two
international NGOs, Rights & Democracy and FIAN International. The findings and
recommendations concerning the right to food in Malawi can be read in the report The Human
Right to Food in Malawi. “In order to fulfill its human rights obligations, a State party to the
ICESCR must develop and implement policies and programs aimed specifically at the
progressive realization of the rights contained therein, including the right to adequate
food.”1351 The report does not, however, give any guidance as to how this could be carried out
in practice. Furthermore, there is no analysis of the elements of the right to food (accessibility,
availability, acceptability)1352 nor is there any analysis of the obstacles to why the rights-
holders fail to demand the right to food and why the duty-bearers fail to meet their
obligations. There is simply no situation analysis with reference to the right to food; instead
the report gives a general overview of the food security situation in the country. The
relationship between the fact-finding mission and the Right to Food Project is unclear; the
report does refer to the project and also recommends the government to “adopt the Human
Right to Food Bill” as proposed by the National Right to Food Taskforce but it does not
indicate what benefits this would bring.1353
The draft bill only made reference to policies and programmes on a very general level:
The Government shall put in place mechanisms, budgetary allocations, safety net
programmes, credit programmes and schemes, wage policies and legislation, land
tenure policies and legislation to ensure the accelerated full realization of the right
to food and nutrition security for all without adverse discrimination. (3(3))
Therefore, the drafters of the bill seemed to represent the view that legislation should only
give certain guidance to the duty-bearer on what steps to take, not stipulate particular policies.
The question is if the bill implies that the schemes mentioned in 3(3) should be rights-based,
and if so, what does it mean? E.g. a credit programme does not automatically advance the
right to food, nor is it self-evident that safety net programmes are rights-based services. There
are more than 150 food security projects coordinated by the Ministry of Agriculture,1354 but it
is unclear if the right to food has a role in this context. In the draft bill it was assumed that all
programmes that claim to support food security are beneficial as to the right to food.
Around 2006, there were plans in Malawi to move away from safety nets (mainly food
assistance) to social protection in the form of, inter alia, unconditional cash transfers to the
1350
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 7.
1351
Samdup, “The Human Right to Food in Malawi”, supra note 145, at 45.
1352
General Comment No. 12, (1999) on the right to adequate food, supra note 577, para. 15.
1353
Samdup, “The Human Right to Food in Malawi”, supra note 145, “recommendations”.
1354
Field diary, notes from discussion with Adviser in Technical Secretariat, 12 December 2006.
205
poorest of the poor.1355 In Malawi thus far social protection policy had been characterised by a
range of ad hoc, small scale and short term interventions rather than a coherent and sustained
set of government driven social protection measures.1356 This kind of welfare approach to
assist the part of the population that is unable, for reasons beyond their control, to either
produce food or buy food, would be worth investigating from a right to food perspective.
Food-based safety net programmes to save lives following e.g. drought dominate policy
response at present but we should keep in mind that these interventions are neither predicable
nor comprehensive. The ideal form of social protection would be guaranteed, predictable
transfers to all chronically vulnerable groups – and this remains a distant ambition,1357 but the
right to food movement in Malawi could integrate the growing interest for social protection
with efforts to strengthen legal protection of the right to food. In other southern African
countries rights-oriented civil society actors have shown signs of assuming an activist role by
advocating for basic social protection as a right.1358 However, the draft bill only included one
short and general reference to social protection1359 and according to Church and Society there
has been no serious discussions about minimum social protection as a right.1360 Furthermore,
the question of the new land policy was not addressed in the draft bill or by the Right to Food
Project despite its potentially considerable effects on the right to food.1361
3.4.6 What is the role of human rights principles in the draft bill and the Right to Food
Project?
In the following I discuss non-discrimination, participation, accountability and empowerment
and compare their role and meaning in the draft bill and the Right to Food Project to the role
and meaning of these principles in the two other projects.
The principle of non-discrimination has a surprisingly weak position in the draft bill. In the
first substantive section of the draft the old-fashioned notion of “himself and his family”
(compare with the ICESCR) is used: “Every person has the right to food and nutrition security
including a standard of living adequate for the health of himself and his family”. This could
be interpreted as discriminatory against female-headed households. Moreover, there is no
general discrimination clause in the draft bill. Instead, with-holding of food aid “from any
vulnerable person for any reason based on political opinion, tribe, region, marital status,
disability, or other status,” is prohibited in draft Section 5(2). This means that the focus was
on upholding non-discrimination in targeting of food aid. Special consideration of so called
vulnerable groups, on the other hand, was emphasised. According to the definition given in
Section 2 “Vulnerable groups means and includes children, pregnant women, lactating
mothers, illiterate persons, persons with disabilities, the poor, the widowed, the orphans, the
1355
Interview No. 24 Department of Poverty and Disaster Management Affairs, Malawi 2006; Interview No. 3
with donor, Malawi 2006. FSD2727. ‘Social protection’ can include safety nets but is broader in scope and more
diverse in practice. See Stephen Devereux, “Social Protection Mechanisms in Southern Africa”, a report by
Regional Hunger and Vulnerability Programme, June 2006, at 1. Available at http://www.ids.ac.uk/files/ RHVP_
Review_of_SP_Report.pdf, visited 10 May 2012.
1356
Devereux, “Social Protection Mechanisms in Southern Africa”, supra note 1355, at 7.
1357
Ibid., at 2.
1358
Ibid., at 5. See also Karen Tibbo, “The Role of INGOs in the New Social Protection Agenda in Africa”, a
report by Regional Hunger and Vulnerability Programme, February 2008. Available at http://www.wahenga.org/
node/1023, visited 10 May 2012.
1359
Section 3(11): “Government shall progressively increase annual budgetary allocation for the programmes in
para. 8 as part of social protection for vulnerable groups.” 3(8) focus on programmes to strengthen dietary
diversity rather than safety-net programmes.
1360
E-mail interview with Church and Society, August 2012.
1361
On this issue, see De Schutter, “The Emerging Human Right to Land”, supra note 553, at 323-324.
206
elderly;” This means that the majority of Malawi’s population is part of a ‘vulnerable group’
(especially since ‘the poor’ is being defined as vulnerable). It is not surprising that there was
no proper analysis of the relationship between discrimination and vulnerability in the draft
itself, but it is surprising that these ‘vulnerable groups’ are included in the bill without any
kind of background analysis.
In all of the three cases analysed, the principle of equality and non-discrimination has focused
on targeting processes, i.e., the process of identifying needs and responding to these needs.
None of the projects used discrimination and marginalisation as a lens for analysis. The
focus was not on finding out who are most marginalised or vulnerable as to discrimination
and exclusion, but on who are vulnerable to food insecurity or malnourishment or resource
constraints in general.
The principle of participation was even weaker than that of non-discrimination: there was no
mention of opportunities for public participation in policy formulation concerning food
security issues in the draft bill. Furthermore, lack of participation in the drafting process itself
was an obvious defeat of ‘human rights principles’. The Right to Food Project was in this
regard a sad example of the non-participatory nature of human rights work that aims at
changing laws and practices from above, with limited or no input from below.
As we have seen in the previous parts of this chapter, accountability was given quite different
meaning in the two approaches to food security analysed so far. What was common to the
JEFAP food assistance programme and the Oxfam rights-based livelihoods programme in
Shire Highlands was that accountability expressed the concern for checks and oversight,
monitoring and institutional constraints on the exercise of power.1362 While the WFP and its
partner NGOs had a managerial and apolitical approach to accountability Oxfam and its
partners had an advocacy and political approach, in which accountability was linked to
obligations on the part of government institutions to deliver certain services. What is
interesting in the Oxfam programme was that accountability was linked to obligations
(characteristic of human rights discourse) but without making explicit reference to legal
provisions and without using the normative framework as an avenue for accountability. The
legal approach in the Right to Food Project, for its part, had a strong focus on achieving
increased accountability through providing stronger legal protection of the right to food.
(Naturally, there can be a close connection between action to achieve political accountability
and action to achieve legal accountability. Advocacy that perhaps starts as demands for
political accountability may later lead to misuse of power being dealt with in a court.)
As we have seen in the analysis of the JEFAP food assistance programme, there were certain
accountability gaps in food distribution. Beneficiaries were left alone with possible
complaints about mismanagement without avenues for holding duty-bearers to account. What
complicated the picture even further is that food assistance operations were largely in the
hands of donors, international agencies, and NGOs, delegated to local structures, i.e. not the
government that has ratified the human rights treaties. The question is if a right to food act
would fill the accountability gap experienced by the beneficiary who did not receive the bag
of maize as she expected?
There is no doubt that one main aim of the organisations behind the draft bill was to increase
the level of legal accountability for violations of the right to food, especially in food
assistance processes (thereby focussing more on the respect dimension of state obligations
and less on the protect and fulfil obligations). It is difficult to speculate about the possible
future usage of such a possibility: nobody knows if victims of violations were able to access
1362
Compare with Schedler, “Conceptualizing Accountability”, supra note 803, at 13.
207
legal advice and representation that is required for a successful case. It is also impossible to
predict if the act would lead to judicial activism around the right to food, and if that would
have beneficial outcomes in terms of remedies for violations. (Of course, it is natural to
expect that those organisations that have initiated the Food and Nutrition Security Bill would
also make use of it in a case where it was adopted.) However, it goes without saying that even
when accountability institutions are in place these may display variable outcomes for the
people suffering from food insecurity and hunger.1363
The way the draft bill appeared in 2006, suggested that cases would focus mostly on the
negative aspects of obligations under the right to food and less on the positive aspects of
taking steps to realise the right. However, since politicisation of food assistance was
widespread and contributed to the view that food assistance is a charity-based service (a
‘favour’)1364 it would be welcome if courts and other forums were to tackle this issue. It is
also clear that the drafters were aware of the limited access to justice that poor people face in
Malawi. The idea behind the Food and Nutrition Security Authority was actually to have an
institution that is easier to access than courts. “You want to provide for a mechanism, an
administrative mechanism within the law that ensures it can be enforced without necessarily
going to court. So you create that kind of authority that will be responsible, it’s responsible
for the implementation, for the monitoring to make sure it’s being complied with. It’s also a
kind of tribunal to settle disputes.”1365
The importance of empowerment was underlined by many of the member organisations in the
Taskforce on the Right to Food. The possible future usage of a right to food act would depend
on the empowerment of rights-holders. In this context we are speaking of rights-holders being
empowered to claim the right to food from duty-bearers, not of empowerment in general (or
capacity development in general as the term was interpreted in the JEFAP).
The context in which empowerment was raised in the Right to Food Project, however,
suggests that it was interpreted as the opposite to being ‘dependent’ and ‘relying on
handouts’: “The right to food was initially seen as a means to getting handouts but it’s not
only handouts, it’s empowerment.”1366 In Malawi handouts are usually synonymous with food
assistance. (And there was no effort to make these ‘handouts’ into a rights-based service.)
This view of a contradiction between empowerment and ‘handouts’ is prevalent in human
rights discourse and is not unique to the Right to Food Project. Even when the question
whether food assistance and other forms of direct assistance does indeed create ‘dependency’
has not been solved1367 with such arguments as “if you continue feeding them day after day,
they may lose the incentive to provide for themselves, and thus become disempowered,
weakened by the help”1368 are surprisingly common in literature on human rights. The
1363
On this issue in the context of the right to water, see Lyla Mehta, Unpacking Rights and Wrongs: Do Human
Rights Make a Difference? The Case of Water Rights in India and South Africa (Brighton: IDS Working Paper
260, November 2005). Available at http://www.drc-citizenship.org/system/assets/1052734463/original/
1052734463-mehta.2005-unpacking.pdf?1289493063, visited 10 May 2012.
1364
“So people are still used to, when they get services from the government, oh this is a favour, this government
is very considerate, they are concerning our plight, not our rights but our plight.” Interview No. 19 with NGO,
Malawi 2006. FSD2727.
1365
Interview No. 16 with draftsperson of Food and Nutrition Security Bill, Malawi 2006. FSD2727.
1366
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
1367
On the debate among scholars and organisation whether food aid creates ‘dependency’ see, e.g. FAO, The
State of Food and Agriculture 2006, supra note 1044, at 35; Lentz and Barret, “Food Aid and Dependency”
supra note 1076.
1368
Kent, Freedom from Want, supra note 83, at 121.
208
argument states that helping people to provide for themselves, or ‘teaching people how to
fish’, as the saying goes, is synonymous with empowering them.1369
However, one could also argue that empowerment is about rights-holders becoming aware
that, in their struggle to provide for themselves and their livelihoods, they have the right to
demand various means of support from the government (claiming needs as rights), and that
the government has to be accountable for implementing rights and services. When everything
else fails they have the right to demand temporary support in the form of food assistance or
cash transfer as social protection. Creating an empowerment agenda around these issues
would mean broadening the agenda for social justice and strengthening the entitlement aspect
of human rights discourse.
According to Englund, this was, however, not what the human rights movement in Malawi
was doing in the first half of 2000. Englund argues that the notion of ‘responsibility’ had
come to complement the emphasis on rights and freedoms in human rights discourse in
Malawi.1370 It seemed human rights NGOs (during civic education sessions in communities)
had put a lot of responsibility on the side of the rights-holder in fulfilling human rights.
Sometimes the concept of empowerment had been linked to encouraging self-reliance and
strengthening of the capacity of community members to manage their own affairs and to work
harder for their ‘development’, and this was the case also in the Right to Food Project.
For instance in the element of food security you’d empower somebody by helping
them how they can on their own manage their agricultural life, their needs and the
like. When you just come and donate bags, and say this is your food, that is not
empowerment. But even education that you can give them, and other basic needs
that actually propel them to a better future, that is empowerment, through
education. Once you have showed somebody you should be able to go back and
see the people do the same things but now on their own without your assistance,
that is empowerment.1371
How empowering is the right to food when combined with market logic and emphasis on
everyone fending for oneself and being responsible for one’s own rights (self-reliance as a
form of empowerment)? If no strong social role for the state is advocated, the question is what
added value the right to food has. When too much responsibility is put on the weaker party,
i.e. the rights-holder, there is a risk that empowerment becomes disempowerment in the face
of the seemingly impossible task to realise one’s own right to food with minimum outside
support.
3.4.7 Concluding remarks
Human rights discourse in Malawi is not stable or static and naturally the heightened interest
in socioeconomic rights and the right to food contributes to its change. The entitlement
dimension of the draft bill is, however, surprisingly weak, much weaker than international
interpretations of the right to food, such as that given by the Committee on ESCR in General
Comment No. 12. The fact that the draft bill has, as of 2012, not been adopted may indicate
that its content did not resonate with human rights discourse dominating at the time of
drafting and advocating for its adoption.
1369
Kent, Freedom from Want, supra note 83, at 121.
1370
Englund, Prisoners of Freedom, supra note 414, at 67. This was confirmed in Interview No. 1 with Malawi
Human Rights Commission; Interview No. 32 with CARE Malawi and Interview No. 24 Department of Poverty
and Disaster Management Affairs; Interview No. 5 with Oxfam; Group Interview No. 2. FSD2727.
1371
Interview No. 15 with Church and Society, Malawi 2006. FSD2727.
209
Having an act on the right to food that would promote clearly defined duties for the state in
the area of food assistance, social protection, as well as services relevant for agriculture would
advance a human rights-based approach to food security. It would strengthen as well the
position of the rights-holders in their struggle to demand services as a matter of fulfilling their
human right to food instead of as favours that may or may not be handed out. However, the
actors in the Right to Food Taskforce seem to underline a perceived contradiction between
empowerment and ‘handouts’. Advocating for making these ‘handouts’ into rights-based
services that could be claimed from accountable duty-bearers was not clearly spelled out.
Instead the draft suggested individual criminalisation of the politicisation of food assistance or
inputs. Focus was thereby on the respect dimension of the obligations coming with the right to
food, while the protect and fulfil dimensions remained weak.
To conclude I will try to relate the legal approach to food security to my assumptions about
the possible added value of human rights in food security efforts. My first assumption was
that a human rights language changes the mindset of the actors in development, underlining
the legally binding nature of addressing food insecurity, and contributing to empowerment of
rights-holders. It seems obvious that an act of legislation on the right to food would contribute
to underlining the legally binding nature of addressing food insecurity. Duty-bearers in
Malawi need to be reminded that addressing food insecurity is a matter of fulfilling human
rights obligations, and food assistance (or social protection schemes) should be rights-based
services. Therefore, legislation on the right to food is valuable as long as it serves the end goal
that the right to adequate food is realised for all Malawians.1372 Legislation is, however, not an
end in itself but instead it is merely a stepping stone in a social and political struggle for
increased equality. There is a risk that if this is forgotten the Taskforce on the Right to Food
will resort to the ‘legal reflex’ that is common in human rights discourse.1373 Having a
national law on the right to food does not automatically further the realisation of this right.
The content of the draft bill was not very transformative as it failed to put forth a clear and
strong obligation for the state to take positive measures to realise the right to food. It can be
questioned whether the draft challenged the status quo in a way that would potentially
strengthen the position of the rights-holder. Naturally, the idea to create a law on the right to
food is as such transformative (legislation can be a step towards social and political
transformation), but the problem with the draft was the vague nature of state obligations and
the unclear role of the duty-bearers. From the perspective of the position of the rights-holders
it is important that, first of all, there are available services, and second, that these are
guaranteed; that there are long term and predictable rather than short term interventions based
on more or less arbitrary criteria.
With regard to the second part of my assumption about the value of human rights language,
that such language is empowering for the rights-holder, the question is whether a stronger
protection of the right to food can contribute to a new human rights discourse in Malawi, with
an emphasis on rights and obligation, entitlements and freedoms rather than one-sidedly on
freedoms. Due to the non-participatory nature of the Right to Food Project the empowerment
element was weak: drafting a bill on the right to food was not taken as a possibility to increase
dialogue on the meaning of the right to food.
1372
The Committee on Economic, Social and Cultural Rights states that “[t]he right to adequate food is realized
when every man, woman and child, alone or in community with others, has physical and economic access at all
times to adequate food or means for its procurement.” General Comment No. 12, (1999) on the right to adequate
food, supra note 577, para. 6.
1373
See Gready and Ensor, “Introduction”, supra note 70, at 9.
210
The idea behind the second assumption about human rights situation analysis was that when
such an analysis raises questions such as what actors should take measures towards
progressively realising the right to food, and what obstacles are hindering these steps from
being taken, focus should be on structural issues such as: policy, power and politics, action
and non-action by institutions, exclusion and marginalisation, as well as rights-holders’ lack
of possibilities to participate. In the Right to Food Project itself there had been no human
rights-based situation analysis outlining the pattern of rights and obligations, rights-holders
and duty-bearers or obstacles in the way of realising the right to food. Perhaps lack of analysis
as a preparation for drafting the Food and Nutrition Security bill was the reason why it failed
to address deeper structural causes of food insecurity and hunger (e.g. lack of land, inputs, and
agricultural services).
My third assumption proposed that human rights offer a platform from which to demand the
accountability of duty-bearers. If the Food and Nutrition Security bill is adopted Malawians
will have one more platform to hold duty-bearers accountable. At least there would be an
explicit avenue to demand legal accountability e.g. for misuse of food assistance and that
could prove to be useful for the effectiveness of these yearly programmes. However, it is
highly unrealistic to think that every Malawian would have to go to court (or another similar
forum) every time his right to food is violated, and therefore efforts to achieve increased legal
accountability need to be combined with broader advocacy efforts.
3.5 Conclusions and review of assumptions
Based on the analysis it is possible to develop a number of criteria for what is characteristic
of (1) the FFA programme within JEFAP (‘charity-based service’); (2) the sustainable
livelihoods programme SHSLP (‘rights-based approach’); and (3) the Right to Food project
(‘legal approach to food security’).
It can be said that food assistance is charity-based service addressing symptoms instead of
trying to change underlying structures that gave rise to hunger. In JEFAP symptoms were
addressed through service delivery that was in the hands of NGOs and local elites rather than
government structures. Although much effort was put into the targeting process and the
principle of non-discrimination and focus on the most vulnerable were given high priority,
there was a certain level of arbitrariness in the process where it was determined who was
chosen as a beneficiary and who was excluded. The food assistance service was not seen as a
matter of human rights, i.e., meeting an obligation by providing a mandatory service to rights-
holders who would have been selected based on clearly defined criteria. Instead the service
remained a charity, i.e., a favour that may or may not be provided to beneficiaries based on
more or less arbitrary criteria. The principles of ‘good development practice’ were taken
seriously, but in the JEFAP participation and accountability remained tools to increase
effectiveness in reaching the intended beneficiaries; instead of dealing with these principles as
a relationship between the government and its citizens. When trying to avoid the political
games of food aid, the development actors turned the programmes into a technical process,
thereby also sidestepping accountability as a democratic principle. Food assistance was a
technical operation where a service was being delivered by an international development
agency in partnership with NGOs, on behalf of the government, and through the support of
donors.
In the rights-based approach the role of duty-bearers was stronger. Everything that the
programme did was informed by the aim of supporting the capacity of the district level duty-
bearers to deliver rights and at the same time generating awareness of and demand for these
211
rights among communities. In this context ‘rights’ meant services – and services were dealt
with as a rights issue (services seen as ‘just entitlements’). There was no clear link to the legal
framework to support the line of reasoning that services should be rights, which meant that
the express linkage to a legal rights framework was missing. Instead, there was a strong focus
on advocacy and efforts to mobilise rights-holders to demand services as a matter of rights
and to demand accountability of duty-bearers. Programme activities aimed at changing policy
and practice and there was a transformative element side by side with traditional service
delivery that tried to alleviate symptoms of, for example, drought. Rights language played an
important role in empowerment processes. The principles of accountability, participation and
non-discrimination were more than tools to be used at the programme level: they also
informed the ambitions to make societal level changes of how these principles are respected
in the relationship between rights-holders and duty-bearers. There was a difference between
charity-based and rights-based approaches in terms of working methods. RBA challenged the
status-quo by trying to achieve change at different levels, seeing equality and non-
discrimination, accountability, participation and empowerment at the level of society and not
only the project level.
Even though certain basic needs (related to freedom from hunger) were seen as rights in the
legal approach to food security, and my assumption was that this would have implications for
the working processes, the irony is that the Right to Food Project had not been very mindful
of so called human rights principles (with the exception of legal accountability). The draft
Food and Nutrition Bill was drafted by a lawyer with input from a very limited number of
stakeholders. Furthermore, within the draft bill the principles of non-discrimination and
participation were weak. (It is too early to judge if the proposed Food and Nutrition Act
would strengthen these principles in the relationship between the rights-holders and the duty-
bearers in the process of realising the right to food.) The programme represented an elite and
legalistic approach with limited or no involvement of people struggling to feed their families
through subsistence farming. Instead, there was strong focus on increasing legal
accountability of duty-bearers, especially for misuse of food assistance. The idea of creating a
law on the right to food is, as such, transformative (social transformation through legislation)
and when combined with advocacy efforts, an ambition to achieving structural change can be
seen. The content of the draft bill did, however, not provide for a strong social role for the
government as the ultimate duty-bearer of fulfilling the right to food.
In all three approaches, targeting was in principle based on needs, but it was only in the
rights-based approach that services were seen as a matter of fulfilling a rights agenda and
people started to claim needs as rights. It makes better sense to distinguish between a charity-
based and a (human) rights-based approach than between a needs-based and a (human) rights-
based approach. Needs do not disappear because the focus is placed on rights; needs continue
to play a role and this is not alien to human rights thinking. However, according to human
rights standards on economic and social rights certain (basic) needs should be entitlements
and fulfilling of these needs is seen as obligations rather than charity.
The charity-based and the legal approaches have more in common than one would think. The
draft bill on the right to food did not put forth rights-based services but focussed instead on
how to avoid abuse and corruption in the targeting process (focussing on individual
accountability and criminalisation). The view on empowerment as the opposite to hand-outs is
another example of similar ideas being upheld in both approaches.
What I call a legal approach to food security was a conventional human rights approach to
food security in the sense that ‘the right to food’ was accepted as being defined in legal
processes and forums. In the rights-based approach analysed, there was no clear link to human
212
rights as defined in international norms and standards, nor in national legislation. The
approach taken by Oxfam and its partners resembled an actor-oriented approach to human
rights in development in that they allowed actors to give meaning to the concept of human
rights. The rights-based approach is a ‘development approach’ to human rights that in many
ways takes participation and empowerment to levels where human rights discourse has not
managed to go due to a non-inclusive agenda in the process of giving meaning to the human
rights concept itself.
Based on the assumptions made before the field research as to the value added by human
rights in development and food security efforts I can conclude and reformulate the
assumptions.
1) The first assumption was that human rights language changes the mindset of the actors in
development, underlining the legally binding nature of addressing food insecurity, and
contributing to empowerment of rights-holders. There is evidence that when actors in
development, both duty-bearers and rights-holders, become aware that food security and
services related to fulfilling it is a matter of rights instead of a ‘favour’ or charity, this does
change their mindset. However, the process of giving meaning to the human rights concept,
including the right to food, is essential to whether the human rights language is going to be
empowering for the rights-holders or not. Human rights language is often associated with an
elite, using top-down approaches, and there is often a fine line between empowerment and
disempowerment. All actors must be included in the processes and dialogues about what
human rights mean, everyone must ‘own’ the rights-language so that it makes sense in a lived
reality to use it.
2) The second assumption was that human rights-based situation analysis implies that a
whole range of new and different questions, which have a basis in the normative human rights
framework, are raised in a development context. There is evidence that thinking in terms of
rights and duties has led to actors raising new questions in the context of radio listening clubs
deciding which development problems to bring to the attention of service providers. These
questions are, however, not based in the normative human rights framework but instead based
on what actors themselves feel they are justly entitled to (an actor-oriented approach). In the
other two projects analysed no situation analysis had been carried out that was based on the
thinking of rights and duties, however, I do think the Right to Food Project would have
benefitted from such an analysis.
3) The third assumption was that human rights offer a platform from which to demand the
accountability of duty-bearers. There is evidence in my data that human rights offered such a
platform in the Shire Highlands programme on a political, or rhetoric level, but not on a legal
level. There was no analysis of how the existing legal framework could be used to demand
accountability, instead it was the act of identifying rights-holders and duty-bearers that was
key. Accountability was linked to obligation in the sense that citizens put pressure on
government representatives to deliver certain services that were seen to be part of a rights
agenda, but there was no link to legal provisions. In the Right to Food project increasing legal
accountability and broadening avenues for making legal and para-legal accountability claims
was a central aim behind drafting the bill on the right to food. However, the content of the
draft bill suggests that the negative side of the obligations under the human right to food
would probably be subject to legal claims rather than using the act to demand positive action
from duty-bearers in the area of livelihoods. The draft bill represented a rather limited agenda
for social justice.
213
We can draw parallels to four dimensions in the ‘new accountability agenda’ advocated
within a human rights-based approach to development, as raised by Sano. Firstly, as there is
strong emphasis on the demands of the rights-holders and the obligations of the duty-bearers,
this implies “a more direct role for ordinary people and their associations in demanding
accountability from the authorities.”1374 This was certainly true for the Shire Highlands
programme, especially in the case of the radio listening clubs. So far the role of the rights-
holders has been limited within the Right to Food Project. The way the draft bill was
formulated in 2006 there was, however, potential to advance their role, especially through
associations, in legal accountability claims.
The second and third new dimension of the accountability agenda is “a broadening and
diversification of the areas within which accountability is demanded;” as well as “a growing
repertoire of methods that are established in order to make demands operative.”1375 We can
see examples of this both within the Shire Highlands programme and the Right to Food
Project. In the former, the main focus was on demanding accountability through putting
pressure on the duty-bearers using various avenues such as meetings and the radio to raise
claims, and in the latter the main focus was on achieving accountability through para-legal
means, i.e. not only court proceedings.
The fourth dimension raised by Sano is “a more ambitious agenda for social justice”,
presuming the existence of a stronger state than the neo-liberal state.1376 If demanding
services from government institutions as a matter of a rights issue can be seen as advancing a
more ambitious agenda for social justice, and I argue it can, this was true for the Shire
Highlands programme. With regard to the Right to Food Project there are some question
marks concerning what kind of state the member organisations are advancing in their
advocacy and through putting forth the draft bill. There seems to be some hesitation within
the Right to Food Project as to what should be the social role of the government.
1374
Sano, “Does Human Rights-Based Development Make a Difference?”, supra note 55, at 72.
1375
Ibid., at 72.
1376
Ibid.
214
PART IV CONCLUDING DISCUSSION
This thesis has explored the role of human rights (as standards, as principles, as rhetoric) in
development policy and practice in general and food security in particular. It has explored
what, if any, transformative potential human rights have in these contexts, which often
involve struggles over power and resources needed for economic and social rights and
services. It has asked whether human rights can have a counter-hegemonic function in the
face of hegemonic development; and whether human rights create space for agency and
empowerment. In this pursuit, it has tried to reveal contradictions, paradoxes, and tensions in
how human rights are used to further transformation and ‘good change’.
In part II of the thesis the author has critically analysed concepts such as development, human
rights, human rights-based approaches to development and food security, and principles of
non-discrimination, accountability, participation and empowerment. The overall purpose of
part II was to give theoretical explanations as to how these concepts have been defined by
various actors in various contexts as well as answers to the general questions concerning the
transformative potential of human rights in development practice and food security posed in
part I. The conceptual analysis also helps to understand the role of these concepts in food
security in Malawi as well as to understand what difference human rights make as they enter
into development programmes and projects, what new elements are brought in, and what
value is added. The author wanted to understand the characteristics of the so called human
rights-based approaches to development cooperation, compared to ‘good development
practice’ and ‘legal approaches’.
*****
The transnational human rights community has used considerable resources to create an
international system of legal human rights standards and institutions responsible for the
monitoring of these standards. Whether this system is working or not was not the subject of
this thesis. However, it is relevant to notice that when human rights are institutionalised it
means they also become part of the power that upholds certain dominant structures – and for
transformation to take place the system of dominance, inter alia, authoritarianism, capitalism,
and patriarchy have to be challenged. As human rights are further integrated in development
efforts they often become part of the social engineering and institutionalisation in a top-down
manner. Human rights become tools of external quality control, a way of imposing
conditionalities. Whether this is ‘good’ or ‘bad’, and for whom, must be assessed in a specific
context. In general, this tendency does have implications for the potential to use human rights
in mobilisation and advocacy against arbitrary power and domination, thereby creating space
for agency.
We cannot assume that official human rights advancement automatically leads to progress and
success. This thesis has pointed out that lack of theories of change in studying human rights
forces researchers to be humble about the possible role of human rights in processes of
change. The theory that does exist, the so called ‘spiral theory’, define human rights narrowly
as ‘legal freedoms rights’. There is no theory of change concerning the role of human rights
defined more broadly. The thesis has identified the fact that studying grassroots women’s
groups, and the way they apply human rights discourse to achieve change in their lives, would
be a good case study to develop and test a hypotheses concerning the role of human rights as a
counter-hegemonic tool in struggles for social change.
215
As regards the ‘spiral theory’, it is unclear what comes after the final stage of change, i.e.,
‘norm-consistent behaviour’. Can human rights be effectively used as a political and legal tool
by rights-holders to improve the conditions of their lives? A certain level of
institutionalisation and acceptance of human rights norms is only a first step and cannot as
such be equated with success or social change. It might be that human rights are foremost
used by domestic elites for hegemonic purposes, i.e., to exert social, cultural, ideological, or
economic influence. We can find examples of such usage of human rights in Malawi. In
Malawi human rights are very much part of an official discourse used by dominant groups.
Human rights are also guaranteed in the Constitution and monitored by courts and the Malawi
Human Rights Commission. However, as using legal avenues for redress is out of reach for
most Malawians a certain degree of institutionalization of human rights has little impact in
creating social change.
*****
In this thesis we have seen that human rights have played, and continue to play, diverse roles
in development policy and practice. An early attempt to integrate the two spheres of
development and human rights was the right to development, with debates in the UN going on
long before the adoption of the Declaration in 1986. The Southern states that pushed for the
adoption of the Declaration used human rights as arguments for global equity among states
and donor obligations but this never had the impact they had hoped for. Today various human
rights-based approaches have a stronger position in development policy and practice than the
right to development. Most Northern donors have chosen to integrate human rights into their
policies and practices through negative human rights conditionality and the demand for good
governance. As a way of giving support to the capacity to live up to the conditionalities put on
aid recipients, they are offered ‘positive support’ to democracy, human rights and governance.
What these strategies have in common is that the demand for rights comes as a measure of
outside quality control.
Reviewing how the concept of ‘development’ has been defined and what kind of development
is the aim in human rights-based strategies is revealing. In the right to development and
human rights-based approaches to development there are elements of people-centred human
development, with a strong role to be played by the state. In these approaches the objective of
‘development’ is the realisation of human rights as defined in treaties. Since human rights
discourse tends to avoid political questions, there is no clear position on economic systems
and the question about growth. There is no fundamental critique or questioning of the very
foundational (Western) idea of ‘development’ as constant growth or improvement; the human
rights-based model simply puts some limitations on what actions can be legitimized in the
name of development as well as offers ‘new’ principles, based in human rights norms, for the
development process. Human rights-based approaches to development, as defined in the
Common Understanding among UN agencies, or among donors, do not question hegemonic
development, which of course is not surprising.
In bottom-up (or ‘alternative’) development it is accepted that ‘development’ will always
mean very different things in different contexts and for different people. When the objective
of development is given (from above as stipulated in human rights instruments and by expert-
led institutions) there is less room for formulating people’s own visions of what kind of
development they might value. Rights talk has been popular also within the ‘alternative
development’ paradigm that puts emphasis on agency and from below action. It seems that the
way rights are used in this context resembles an actor-oriented approach (the definition is left
open) rather than a human rights-based approach that is linked to definitions given in
international human rights treaties.
216
All kinds of conditioned aid, human rights related or not, can be seen as deliberately trying to
impose your idea of change and thereby ‘development’ on the recipient of support. In
contrast, in support that respects the autonomy of the actors, the helpers help the actors to help
themselves. This can be through reducing obstacles or supplying resources to enable the
actors to do what they were already motivated to do. There is compatibility between this
approach and certain human rights values such as freedom of choice and autonomy. However,
this kind of ‘radical capacity building’ is difficult to use in a human rights-based approach
that aims at supporting capacity for pre-defined human rights-conforming development aims.
This thesis finds that the concept of ‘rights-based approaches’ can be more useful for creating
space for agency and empowerment than ‘human rights-based approaches’ that are strongly
linked to the international human rights regime. The first concept leaves more room for actors
to define development and rights in a political process; the international human rights regime
may serve as a source of inspiration but actors do not lock themselves into certain pre-
determined goals, defined in international human rights agreements.
*****
Human rights discourse is often an excluding and elitist discourse in the global South, not
least in Malawi. This study has argued that human rights discourse needs to be expanded and
opened up for a public political dialogue taking place at all levels of society rather than kept
as expert knowledge. While acknowledging the importance of the international legal human
rights framework this thesis wants to highlight that global movements for social justice have
challenged aspects of this system, thereby contributing to its evolution and reformulation.
Specific human rights have to be given content and meaning not only by legislators and courts
(‘from above’) but also by actors within social movements and community development
(‘from below’). Rights-based approaches to development can at best help in advancing a
localisation and politicisation process of human rights. Opportunities for agency are created
when the political space in which individuals and groups are able to claim their rights and
participate in decisions that affect their lives is expanded. In the process of formulating
development and food security-related human rights claims, the actors reshape and broaden
what is normally understood to be human rights. In Malawi we have seen actors taking the
human rights agenda into the area of services. This is an example of how rights-based
approaches challenge the traditional understanding of ‘human rights’.
An actor-oriented approach to human rights questions the position of experts as sole agents
in the process of meaning-giving; it contributes to rethinking and reframing human rights as
contextual and dynamic concepts, and thereby also gives human rights discourse a new
language. This is challenging and certainly not risk-free but is in the interest of diversity.
Diversity should not be seen as a virtue only when exercised within the limits the ‘liberal
paradigm’. There must be trust in the wisdom and change from below, seeing that there are
opportunities and challenges for change in all cultures and all situations. We should move
beyond blaming ‘culture’ for human rights violations and posing universal human rights
principles embodied in formal laws as the solution. Reality is far more complex. This study
finds that the most fruitful approach to the universal human rights debate is viewing ‘rights as
culture’ instead of ‘rights versus culture’ or ‘rights to culture’. The task of people doing
human rights-based development work is about assisting the process so that poor people’s
claims are heard, seen and reflected, and not one of imposing their idea of help, or change.
The task also includes putting some limits to self-direction so that everyone’s human rights
are respected.
217
Actors such as Oxfam, together with local groups, adopt new rights and reformulate existing
rights in a way that makes sense to the people they work with. Thereby they contribute to
giving meaning to human rights in a new way, challenging the dominant meaning given to
human rights. Radio listening clubs in Southern Malawi questioned the idea that human rights
need to be introduced by experts and created an alternative debate on injustice. At the same
time we have seen that Oxfam’s local partners and rights-holders tend to prioritise short-term
needs when setting agendas for development rather than striving for structural changes in
economic and social policies. However, if we take agency seriously, we must let actors
themselves speak about human rights and development – despite the risks – also when they
make decisions that are ‘wrong’ from the perspective of the human rights expert.
*****
In the chapter on food security and food rights we have seen that food security programmes
and food aid have been the development response to hunger while the human rights response
has been establishing a legal entitlement that in theory can be claimed from duty-bearers.
Despite the either/or thinking that has been characteristic of human rights discourse in the past
it seems that today UN-led experts have embraced the right to food as an individual, legally
enforceable entitlement while at the same time not avoiding putting the right to adequate food
into a political and economic context, calling for structural reforms such as land and
agricultural reform. Similarly, the right to food does, according to General Comment 12,
sometimes include a right to receive food assistance or other support. The State has the fulfil-
obligation to provide the right to food directly to victims of natural or other disasters.
Despite differences in emphasis, the two discourses of food security and the right to food are
closely related to each other, both underlining physical and economic access to food. ‘Food
security’ has evolved from a focus on supply and availability of food at a national level to
access to food on the household and individual level. Similarly, physical and economic access
to food has become a key factor in how the right to adequate food has come to be defined in
General Comment 12 of 1999. Before the adoption of the general comment, the normative
content of the right to food was less clear. Moreover, other efforts have been made to define
the right to food and envision the steps towards its realisation. In 2000, the Human Rights
Commission appointed a Special Rapportuer on the Right to Food and in 2002 the World
Food Summit called on the FAO council to establish an Intergovernmental Working Group to
elaborate a set of voluntary guidelines to support Member States’ efforts to achieve the
progressive realisation of the right to adequate food in the context of national food security.
These so called Right to Food Guidelines were adopted in 2004, and are said to be a human
rights-based practical tool addressed to all states.
The Guidelines are designed to clarify and help states in developing strategies, policies and
programmers which are rights-based. This means they should be based on legal obligations –
as the claimed added value of a human rights approach to food security lies in the emphasis of
addressing food insecurity as a matter of obligation, not benevolence. However, the Right to
Food Guidelines give very little attention to obligations and what is even more confusing is
that they fail to clarify the essential fulfil/provide dimension of the tripartite obligations used
in General Comment 12. States that want to establish and maintain safety nets or other
assistance, as part of their right to food strategies, for individuals who are unable to provide
for themselves, will not find guidance in the Guidelines. The Guidelines seldom link the right
to food to an obligation, and does not use the concepts of ‘rights-holders’ and ‘duty-bearers’;
concepts that were already introduced into the food security debates in the 1980s. For these
reasons, it remains unclear what exactly is the role of duty-bearer institutions, rights-holders,
218
and different stakeholders such as donor states and international agencies in strategies aiming
at progressive realization of the right to adequate food.
The process of giving meaning to the right to food continues and various actors influence it:
UN-led expert institutions based in Geneva and New York, NGOs and other civil society
actors that work locally as well as transnationally, and national courts on the national level.
The regional, India-based woman’s organisation PWESCR’s efforts to establish a right to
livelihoods in the international human rights system and the Right to Food Campaign in India
are examples of how civil society actors strive to contribute to giving meaning to food rights
in a way that makes sense to them and the people they work with. They urge for redefinition
and expansion of current legal interpretations of the right to food, calling for what they feel
are ‘just entitlements’. For the PWESCR and its partners the right to livelihoods makes better
sense in the lived reality of marginalised groups, especially women, they claim to represent.
Women produce 60-80 percent of the food in most developing countries (more than 80
percent of the food in Africa) – and yet they are disproportionately vulnerable to hunger and
receive only 7 percent of agricultural extension time and resources.1377 What the actors behind
the Right to Food Campaign in India as well as the Right to Livelihoods campaign at the
transnational level have in common is the ambition to link food rights to broader issues of
livelihoods, emphasising that a livelihoods perspective gives agency to rights-holders.
*****
Despite the fact that most agencies work with their own definition of a human rights-based
approach to development cooperation, there seems to be agreement on the core elements
defining it: this approaches works to strengthen the capacity of duty-bearers to respect, protect
and fulfil their human rights obligations; simultaneously, the rights-holders’ capacity to
demand and claim that their human rights are respected, protected and fulfilled is
strengthened; the aim of human rights-based development is human rights realisation and the
process of how this aim is reached is informed by human rights principles.
The problem is that it is not always clear what ‘human rights principles’ add to ‘good
development practice’, which also works to strengthen equality, accountability, participation
and empowerment.
From the review of how these principles are interpreted and applied in the human rights
discourse, in its conventional legal form, the development discourse and in the practices that
come into being as these two discourses meet, it is clear that a human rights perspective does
bring in a new dimension. However, it is less clear whether a focus on human rights and
human rights principles create space for empowerment and agency. There seems to be a
contradiction in the discourses linking human rights and development; as on the one hand it is
aimed at people becoming active agents rather than passive beneficiaries, while on the other
hand it does not fully allow these same people to be part of a discussion on the meaning of
concepts such as participation, empowerment, and human rights. Often the agenda has been
set by organisational priorities that again are informed by ready-made definitions given by
experts.
Change is a disorderly process, and it is clear that the role of human rights in these processes
can be static and disempowering or ‘alive’, claimed in the moment, and empowering. The
context and the process matter. The issues at stake are especially concerned with who sets the
agenda, who decides what issue to mobilise around, and what happens in the process of
translating people’s daily challenges into a human rights language.
1377
Halving Hunger: It can be done, supra note 549, at 5.
219
As a human rights principle, equality and non-discrimination should not remain on the project
or programme level but also have implications for advocacy and mobilisation efforts to
challenge structures that uphold inequality in society. In a similar way, when human rights
enter into development policies and practices, new accountability relationships and
frameworks emerge. There is stronger focus on the state-citizen relationship compared to the
donor-implementing agency accountability relationship that tends to dominate in ‘good
development discourse’. In human rights-based approaches to development, the relationship
between rights-holders and duty-bearers is at the heart of demanding accountability;
accountability is about making sense of rights and obligations. The act of identifying rights-
holders (and their entitlements) and corresponding duty-bearers (and their obligations)
potentially raise levels of accountability in the development process. Advocacy and
mobilisation around issues of lack of practical implementation of rights/services are important
aspects of the enforceability and responsiveness dimensions of accountability. In some
countries, judicial activism also plays an important role in these broader struggles for
accountability. In these struggles, accountability is not apolitical, even when resorting to a
court.
Accountability has in common with participation the fact that it strives to enable people to
actively draw on their civil and political rights in order to achieve something else, often their
economic, social and cultural rights. In this way, accountability and participation strive for a
broader change agenda. The aim is to increase participation in the relationship between people
as citizens and rights-holders and the different power holders such as government institutions,
donors, and corporations that make policy decisions that have great impact on poor peoples’
lives. In human rights-based approaches the aim would be participation in societal decision-
making; the participatory relationships include the relationship between the government and
its citizens, not only the ‘beneficiary’ and the project. This is deeply political and fits uneasily
within organisations that try to maintain that they do apolitical human rights awareness
raising. Transformative participation must consider ways of challenging broader structures,
and this requires political strategies.
In the matter of participation, there is, however, a tendency both within the development and
human rights communities that, when experts are involved, they think they know what is best
for ‘the poor’ and participation becomes consultation or superficial involvement in activities.
Both accountability and participation can be defined narrowly as a way to improve
development outcomes and increase effectiveness.
Another key challenge is that human rights-based approaches which are linked to human
rights norms and standards tend to have pre-defined goals. This fits uneasily with
transformative development, as it goes against the very idea of participation and allowing the
‘beneficiaries’ to be in control, making obvious their own intentions for development. In an
actor-oriented approach to human rights this does not have to be a problem: actors are free to
give meaning to ‘human rights’ instead of relying on pre-defined concepts, unless actors
produce demands that violate other actors’ human rights.
*****
In the empirical section, we have seen that the development policy and practice has focused
on responding to immediate needs during the repeated food crises in Malawi while the human
rights community has mainly focused on freedoms rather than entitlements. The human rights
work has been characterised by talk rather than action. Civic education has been the main
mode of ‘sensitising’ the Malawian public to issues such as human rights and democracy. In
220
civic education, participants are expected to take ‘human rights’ as given concepts and
therefore there has been very little dialogue about the meaning and value of human rights.
The projects in Malawi analysed in this thesis use the human rights concept in different ways.
Oxfam and its partners in the SHSLP operated with a rather loose definition of human rights,
where there was room for the local actors to give meaning to the concept, in a way that
resembles an actor-oriented perspective on human rights while the Right to Food Project
applied an elite, from above approach to human rights with limited or non-existent
participation in the definition process. The latter approach used a legal approach, accepting
human rights to be those rights that are defined in legal documents while the former approach
saw human rights as cultural practice.
My empirical data supports the conclusions reached in part II. The way that non-
discrimination, accountability, participation and empowerment were used in the charity-based
approach, rights-based approach and legal approaches indicate that it is in the rights-based
approach that human rights in general and these principles in particular have the greatest
transformative potential. The strong focus on claiming needs as rights in the rights-based
approach is a considerable shift in human rights discourse in Malawi, which has previously
focused on rights as freedoms rather than as entitlements. Having such a strong focus on the
responsibility of the duty-bearer is also a change from a discourse that has emphasised the
responsibility of the rights-holder. There was, however, no strong link to the legal framework
to support the line of reasoning that services are rights; ‘rights’ were rather dealt with as ‘just
entitlements’. It is thereby possible to put the approach into the conceptual framework of an
actor-oriented approach to rights-based development: the understanding of ‘rights’ were
shaped through actual struggles informed by people’s own understandings of just
entitlements.
In the analysis of the FFA programme, (representing a ‘charity-based approach’)
participation, empowerment and accountability remained tools to increase effectiveness in
reaching the intended beneficiaries; instead of viewing these principles as a something that
should govern the relationship between the government and its citizens. There was no
questioning of the status quo. Avoiding the political games of food aid meant that the
influential development actors also avoided hunger as a political problem.
The right to food, or human rights law in general, had few implications for the way the FFA
project was implemented in Malawi. The notable exception was that the right of non-
discrimination and focus on the most vulnerable people in theory had a strong role in the
selection of beneficiaries, meaning that only the neediest people should receive food and that
there should be no discrimination in the targeting process. (In practice the targeting process
had its problems of course.) This can partly be seen as the donors’ way of trying to guarantee
that food was not misused for political purposes, and that targeting was indeed based on
needs. In a way this was sort of ‘human rights conditionality’.
In all of the three cases analysed the principle of equality and non-discrimination focused on
targeting processes, i.e., the process of identifying needs and responding to these needs. None
of the projects used discrimination and marginalisation as a lens for analysis. Focus was not
on finding out who is most marginalised or vulnerable to discrimination and exclusion, but on
who is vulnerable to food insecurity or malnourishment or resource constraints in general.
The principle of accountability was in the rights-based approach used as a basis to put
pressure on government institutions to comply with promises that were made during meetings
between service providers and community members. This line of reasoning is definitely a step
away from the managerial approach to accountability that was characteristic of the charity-
221
based approach. While the WFP and its partner NGOs in the charity-based approach had a
managerial and apolitical approach to accountability Oxfam and its partners in the rights-
based approach had an advocacy and political approach, in which accountability was linked to
obligations on the part of government institutions to deliver certain services. What is
interesting in the Oxfam programme was that accountability was linked to obligations
(characteristic of a human rights discourse) but without making explicit reference to legal
provisions and without using the normative framework as an avenue for accountability. The
legal approach in the Right to Food Project, for its part, had a strong focus on achieving
increased accountability through providing stronger legal protection of the right to food. The
main aim of the organisations behind the draft bill was to increase the level of legal
accountability for violations of the right to food, especially in food assistance processes. The
entitlement dimension of the draft bill was, however, surprisingly weak. The content of the
draft bill was not very transformative as it failed to put forth a clear and strong obligation for
the state to take positive measures to realise the right to food. It can be questioned whether the
draft challenged the status quo in a way that would potentially strengthen the position of the
rights-holder.
In the rights-based approach there was strong emphasis on particularly women’s participation
(a groups that traditionally has been outside of decision-making structures) in political
structures and formal or informal decision-making. This indicates that participation had a
broader meaning and agenda behind it than was the case in the food assistance programme.
Women and men did not participate merely as ‘beneficiaries’ but also as citizens and rights-
holders. In the legal approach, the principle of participation was weak: there was no mention
of opportunities for public participation in policy formulation concerning food security issues
in the draft bill created by the project. Furthermore, lack of participation in the drafting
process itself was an obvious failure of ‘human rights principles’.
In the rights-based approach, Oxfam and its partners were working to create a culture of
human rights where rights-holders would be able to claim needs as rights and where duty-
bearers would be clear that they have an obligation to respond. Empowerment was in this case
a process that leads these people to perceive themselves as able and entitled to make claims
and demand accountability.
The importance of empowerment was underlined in the legal approach. In this context we are
speaking of rights-holders being empowered to claim the right to food from duty-bearers, not
of empowerment in general (or general ‘capacity development’ as the term was interpreted in
the charity-based approach). However, due to the non-participatory nature of the project the
empowerment element was non-existent: drafting a bill on the right to food was not taken as a
possibility to increase dialogue on the meaning of the right to food. The context in which
empowerment was raised in the Right to Food Project, moreover, suggests that it was
interpreted as the opposite to being ‘dependent’ and ‘relying on handouts’. In Malawi
handouts are usually synonymous with food assistance in some form. (And there was no effort
to make these ‘handouts’ into a rights-based service.)
*****
This study finds that human rights are useful in shifting the attention of development policy
and practice to obligations, accountability and the ‘do no harm’ principle. A human rights-
based situation analysis can, moreover, contribute to raising new questions that contribute to
analysing structural challenges and the relationship between rights-holders and duty-bearers.
However, when human rights are conventionally defined as rights guaranteed in international
agreements they tend to serve as outside quality control in a way that serves the interests of
222
hegemonic development. In order for human rights to play a role in counter-hegemonic
struggles in social resistance, creating space for agency and empowerment, they need to be
open to public dialogue. An actor-oriented approach to human rights in development may
contribute to reshaping and diversifying human rights discourse.
223
SVENSK SAMMANFATTNING
Avhandlingen är en analys av den roll som mänskliga rättigheter spelar i
utvecklingssamarbete i allmänhet och tre matsäkerhetsprojekt i Malawi i synnerhet.
Författaren undersöker huruvida mänskliga rättigheter kan bidra till samhälleliga
förändringsprocesser. Förändring skapas av individer och grupper (aktörer) med en vision för
det samhälle som de vill leva i. Den teoretiska utgångspunkten är att individer och grupper
inte endast formas av sin värld utan också har makt att förändra den. Undersökningen har en
diskursiv syn på mänskliga rättigheter; rättigheter ses som sociala konstruktioner skapade av
människor, konstruktioner som förändras i takt med att aktörerna ger dem ny mening.
Avhandlingen frågar huruvida mänskliga rättigheter, när de integreras i utvecklingssamarbete,
kan skapa utrymme för egenmakt hos lokala aktörer. Är det möjligt för mänskliga rättigheter
att utgöra en anti-hegemonisk strategi – då utgångspunkten är att ’utveckling’ har kommit att
få en hegemonisk position? Genom en analys av hur ’utveckling’ har definierats i
människorättsbaserade strategier samt i diskursen kring rätten till utveckling finner författaren
att mänskliga rättigheter snarare minskar utrymmet för aktörers egenmakt: målet för
utveckling ges uppifrån, via människorättskonventioner. Inom alternativa utvecklingsteorier
accepteras det att målet för och innehållet i ’utveckling’ alltid varierar. Mänskliga rättigheter
har kommit att utgöra yttre kvalitetskrav och villkorsklausuler vilket påverkar deras
möjligheter att skapa utrymme för att ifrågasätta dominerande strukturer.
Författaren ser möjligheter i ett aktörsperspektiv på mänskliga rättigheter där definitionen
lämnas öppen. ’Rättigheter’ definieras genom strävanden att få dem respekterade och
förverkligade. Aktörernas egen uppfattning om berättigade anspråk påverkar vilken
innebörden blir i enskilda sammanhang. När aktörernas egenmakt är utgångspunkten kan
dominerande ekonomiska, politiska, sociala och kulturella strukturer ifrågasättas.
Vad gäller människorättsbaserade utvecklingsstrategiers mervärde finner författaren att de
riktar uppmärksamheten mot olika aktörers skyldigheter att förverkliga fattigas ekonomiska
och sociala behov samt vikten av att mänskliga rättigheter inte får kränkas genom
utvecklingspolitiska beslut. En utvecklingspolitisk analys som utgår från mänskliga rättigheter
kan leda till att nya frågor lyfts fram: vem har skyldigheter, vem har rättigheter, och varför
förverkligas inte dessa? Fokus flyttas till hur politiska, ekonomiska och juridiska strukturer
kan förändras så att de främjar mänskliga rättigheter, samt till olika aktörers ansvar.
Författaren använder empiriskt material från Malawi för att visa vilken roll mänskliga
rättigheter och så kallade människorättsprinciper såsom icke-diskriminering och ansvarighet
spelar inom tre projekt: (1) ett mathjälpsprojekt som syftar till att stärka lokala tillgångar; (2)
ett rättighetsbaserat projekt med fokus på att stärka småskaligt jordbruk och andra strategier
för livsuppehälle; samt (3) ett juridiskt projekt med målet att skapa en lag som skyddar rätten
till föda. Analysen kommer fram till att det rättighetsbaserade projektet i den mittersta
kategorin strävade efter den mest djupgående samhälleliga förändringen.
Människorättsprinciperna ansvarighet och deltagande handlade inte endast om verksamheten
inom projektet utan man strävade efter att stärka dessa principer också mellan medborgare
och myndigheter. Rättigheter – som ett sätt att tala, tänka och handla – inte som abstrakta
juridiska normer, påverkade de lokala aktörernas sätt att kräva bl.a. tjänster av lokala
myndigheter. Teoretiskt kan man säga att projektet representerar ett aktörsperspektiv på
mänskliga rättigheter där aktörernas egna uppfattningar om vad de är berättigade till samt
224
krav på myndigheters ansvar formade vilken betydelse rättigheter kom att få. Till skillnad från
det juridiska projektet spelade expertkunskap en mindre roll.
225
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246
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Lilongwe, male).
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Interview No. 35 with international NGO (15 December in Lilongwe, female).
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Alessandra Sarelin
Alessandra Sarelin | Exploring the Role and Transformative Potential of Human Rights in Development Practice and Food Security: A Case Study from Malawi | 2012
Exploring the Role
and Transformative
Potential of Human
Rights in Development Alessandra Sarelin
Practice and Food
Security: A Case Study Exploring the Role and Transformative
from Malawi Potential of Human Rights in Development
A study in International Law Practice and Food Security:
This thesis investigates the interplay between
human rights and development. It explores the A Case Study from Malawi
role of human rights (as standards, as principles, as
rhetoric) and their transformative potential in terms
of challenging the status quo in favour of margina-
lised rights-holders.
The study contains an analysis of the role of human
rights in three food-related interventions in Malawi UFULU WOKHALA
representing different approaches to development
and food security: (1) a charity-based approach); (2)
NDI CHAKUDYA
a rights-based approach); (3) a legal human rights
approach.
9 789517 656641
Åbo Akademi University Press | ISBN 978-951-765-664-1
Alessandra Sarelin