Makau W. Mutua’s research while affiliated with University at Buffalo, State University of New York and other places

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Publications (49)


Illiberalism, Human Rights, and Rule of Law: A Kenyan Paradox
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April 2023

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21 Reads

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1 Citation

Makau Mutua

Hypocrisy is the homage that vice pays to virtue (La Rochefoucauld, 2009). While this appears to be the vox populi of Kenyans—elites and the hoi polloi alike—it is a paradox of the country’s politics. On the one hand, the masses of the people seem to cry out for a democratic state. But on the other hand, they seem to be possessed by a culture of cynicism and incipient fascism (see Cheeseman et al., 2020). The elites swear by the values of liberalism but practice the exact opposite. It is not even the imperfection of the idea. Rather, it is the complete repudiation of those ideals in virtually all facets of national life. The country has been gripped by an orgy of self-cannibalization in which people say one thing but do another. The country’s zeitgeist is a despair of contradictions, most of them debilitating to national interests. What is left is a ruinous landscape on which only evil seems to germinate. How to reconcile the seemingly genuine desire—and often hard-fought struggles—for a progressive, left-of-center, liberal democratic state with deep-seated illiberalism speaks volumes about the apparent inability of the Kenyan post-colonial state to cohere a national character and ethos of democracy (Mutua, 2008). Vertically and horizontally, human rights and the rule of law are on every lip, yet they are observed more in their breach than the observance. As elsewhere, a gene of illiberalism lurks everywhere (Zakaria, 1997: 22).


Mazrui and Barkan: a tribute

January 2016

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29 Reads

Journal of Contemporary African Studies

The piece examines the intellectual and political legacies of two icons of Africana Studies -- Ali Mazrui and Joel Barkan. The two helped shape the discourse and study of Africa in the West and beyond during their long and celebrated academic careers. Although Mazrui and Barkan came from different corners of our planet, they both embodied an unqualified optimism about Africa in the face of narratives that have sought to marginalize the continent. They mentored hundreds of students, scholars, and policymakers in the best Africanist traditions. This piece captures aspects of the large imprint that they have left behind.


What Is the Future of Transitional Justice?
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February 2015

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234 Reads

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53 Citations

International Journal of Transitional Justice

This piece explores and critiques the project of transitional justice. It has been more than a quarter of a century since transitional justice burst onto the global stage. Over the years it has come to be billed as a panacea for addressing deeply embedded social and political dysfunction after periods of mass repression and violence. Many theorists and policy makers have argued that it is a key bridge to sustainable peace, democracy and human rights. But the historical record is not clear about a direct causal relationship between transitional justice mechanisms and specific outcomes in post-conflict societies. In some cases, truth commissions, criminal prosecutions and other transitional justice interventions appear to have given society a chance at a new and hopeful beginning. In others, conflicts have either re-emerged or been exacerbated. Which begs the question, is transitional justice the appropriate vehicle for achieving these goals? If it does not always lead to positive outcomes, why not? Are there conceptual problems and theoretical deficiencies in how we make sense of justice and transitions that account for the failures? Or is it the translation of transitional justice norms into practice that is wanting? The big question is this: Does transitional justice have a future, given its mixed record? This piece focuses on the meaning of the concept, how its application has evolved and whether it is sustainable as theory and praxis. How defined is the concept of transitional justice? What exactly does it entail and what does it seek to achieve? Are political democracy, the rule of law and human rights – the pivots of liberalism – the desired end results implicit in transitional justice approaches? If so, why should liberalism be the germ of the new post-conflict society? If transitional justice promotes liberalism, who gains and who loses if it succeeds? How would liberalism address deeply rooted cultural, colonial and ethnic rivalries and inequities? Would structures of deep inequity be vanquished by these norms? Or does this conception of transitional justice exacerbate conflicts as it seeks to transform societies? Who pays for transformation? What about market forces and norms – do they fuel or contain conflict? If existing transitional justice concepts are inadequate to recover, or reclaim, societies sickened by violence and repression, are there alternatives? If so, how do those alternatives compare with present conceptualizations of transitional justice? Should the term ‘transitional justice’ itself be abandoned?

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What is Twail?

July 2013

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623 Reads

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127 Citations

Proceedings of the ASIL Annual Meeting

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


Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization

July 2013

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191 Reads

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33 Citations

Human Rights in Development Online

Since the late 1980s, the ascendancy of market economics coupled with a revolution in information technology has accelerated the process of globalization while institutions of international governance have been unable or unwilling to catch up. Privatization and the related phenomena of deregulation, structural adjustment, and a myriad of new bilateral, regional and multilateral trade and investment agreements have proceeded without credible efforts to conceptually and practically address their impacts on legally protected human rights. This paper addresses the tensions and potential synergies between the two legal regimes governing trade and investment and human rights. Trade and investment agreements, as well as the practices of international business, must be held accountable to existing human rights law. The spirit of human rights law must frame the development of trade law if either is to achieve its goals. While human rights violations existed long before this period of rapid economic integration, the growing number of sectors covered by multilateral trade and investment agreements has set the stage for a new variety of human rights abuses which have not yet been suitably addressed. There is a need to evolve new laws and policies in a manner that overcomes the post-war legacy of isolation between human rights institutions and economic institutions. This is something that the World Trade Organization, other multinational organizations, and all of mankind should address.


The Construction of the African Human Rights System: Prospects and Pitfalls

July 2013

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27 Reads

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6 Citations

The regional African human rights system is based on the African Charter on Human and Peoples’ Rights (The African or Banjul Charter), which entered into force on October 21, 1986, upon ratification by a simple majority of member states of the organization of African Unity (OAU). In 1998, the OAU adopted a protocol for the establishment of an African Court on Human and Peoples’ rights. The Protocol suggests that the African Human Rights Court will make the promotion and the protection of human rights within the regional system more effective. But the mere addition of a court, although a significant development, is unlikely by itself to address sufficiently the normative and structural weaknesses that have plagued the African human rights system since its inception. This chapter critically evaluates the African human rights system and assesses its potential impact on human rights conditions on the continent. It examines the normative aspects and institutional arrangements created under the African Charter and the Protocol for the African Human Rights Court. It asks whether a clear and mutually reinforcing division of labor between the African Commission and the African Human Rights Court could be developed to promote and protect human rights on the continent more effectively.


Critical Race Theory and International Law: The View of an Insider-Outsider

July 2013

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178 Reads

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25 Citations

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


Sexual Orientation and Human Rights: Putting Homophobia on Trial

January 2011

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248 Reads

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42 Citations

This chapter analyzes and critiques homophobia in Africa and argues that as a matter of general historical practice, Africans did not discriminate against, or socially stigmatize, gays and lesbians. The author contends that modern homophobia in Africa can be traced directly to mission Christianity and Islam whose doctrinal teachings have been used to promote homophobia. The writer takes the view that it is the normative obligation of human rights thinkers and advocates to deconstruct the intellectual bankruptcy of African homophobes and reconstruct a rights discourse that affirms the dignity of homosexuals. It is not un-African to be gay, as some have argued. Nor is there anything racial – or ethnic – about any form of sexual orientation. The author concludes by calling for a struggle based on anti-subordination to combat all forms of human powerlessness, including sexual orientation.


A Critique of Rights in Transitional Justice: The African Experience

January 2011

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56 Reads

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4 Citations

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were based, while instructive, is severely constrained for the African landscape. It therefore makes the case for a holistic transitional justice approach that includes not just the revenge and other accountability elements of criminal judicial sanctions, but also focuses on truth, reconciliation, institutional reforms, and reparations. This “ubuntu” approach of “community wholesomeness” is necessary to heal society and restore its balance.”


Citations (36)


... Another thing is that the pursuit of DHR-PA in Africa revolves around the good governance agenda (a Western world-value-laden form of democratization and order of public authority) to realize people-centered governing norms. But, while a good governance approach has presented normative deficits to the human rights agenda (Hyden, 2023;Mutua, 2023), the attention to human proclivities of administrative systems gives some hope in realizing DHR-PA conditions. This is evident in recent practical institutional steps toward realizing DHR-PA systems, which have been conspicuous in constitutional and public sector reforms (Kibet & Fombad, 2017). ...

Reference:

DHR‐PA —Democracy and human rights in public administration in Africa
Illiberalism, Human Rights, and Rule of Law: A Kenyan Paradox
  • Citing Chapter
  • April 2023

... Limited access to legal resources, inadequate infrastructure, and entrenched socio-economic disparities in rural areas exacerbate the vulnerability of rural populations to injustice and human rights violations [14]. In addition, cultural norms and traditional practices prevalent in rural areas can perpetuate discrimination and impede the full realisation of human rights, especially for marginalised groups such as women, indigenous peoples and ethnic minorities [15]. The pursuit of social justice and the protection of human rights are central tenets of democratic societies around the world, and it is critical to address these challenges in rural areas to ensure equal rights and opportunities for all individuals [16]- [18]. ...

Protecting Human Rights in a Global Economy Challenges for the World Trade Organization
  • Citing Chapter
  • January 2001

... I. Introdução 1 N a última década, a literatura de Relações Internacionais tem discutido em que medida a ação de organizações não governamentais (ONGs) e ativistas profissionais de direitos humanos é, de fato, eficaz. Para vários autores que se opõem à teleologia progressista do modelo analítico mais tradicional sobre a difusão e impacto das normas internacionais de direitos humanos (Risse & Ropp, 2013), a institucionalização das lutas sociais de grupos e movimentos em torno da linguagem dos direitos humanos, capitaneada por ONGs, leva à moderação, cooptação e até mesmo esvaziamento e despolitização das reivindicações de direitos (Baxi, 2012;Hopgood, 2013;Mutua, 2015;Estévez, 2017;Moyn, 2017). ...

Is the Age of Human Rights Over?
  • Citing Article
  • January 2015

SSRN Electronic Journal

... Despite widespread support for transitional justice measures, it is common for victims of mass human rights violations to feel that justice has not been done, and therefore that the threat of future violations persists. In fact, one of the key challenges of transitional justice is that all conflict sides are expected (often from international pressure) to make justice concessions in order to create a peaceful coexistence (Mutua, 2015). Dealing with such situations is emotionally and socially challenging, so individuals turn to valued group memberships to make sense of and cope with these challenges (e.g., perceived lack of justice and threat of future conflict and harm). ...

What Is the Future of Transitional Justice?

International Journal of Transitional Justice

... The western approach towards LGBTQIA+ people can be a veritable lesson for Africa. The practices in Western nations give clue in relation to acceptance, solidarity and inclusivity (Mutua, 2011). The provision of this support is needed because most times, these individuals beyond their variance in identity are embedded with talents, innate abilities and other inventive capacities that could drive societal improvement and development. ...

Sexual Orientation and Human Rights: Putting Homophobia on Trial
  • Citing Article
  • January 2011

... 108 In this regard, Mutua argues that the new constitutional framework adopted in 'post'-apartheid South Africa has caused this bifurcated social and economic structure to be frozen in time. 109 The Constitution has, therefore, taken on the colour of oppression as it has been utilised as an instrument of the preservation of white privilege and wealth in the 'post'-apartheid era. 110 Even in the 'post'-apartheid era, one finds mostly white people on this side of the abyssal line as well as the black elite living in a liberal democracy. ...

Hope and Despair for a New South Africa: The Limits of Rights Discourse
  • Citing Article

... This is a disaster for indigenous religious groups. In another context, a similar point was made by Makau wa Mutua (1999) in Limitations on Religious Rights: Problematizing Religious Freedom in Africa and America that addressed human rights, constitutional, and other legal bases for religious freedom and the protection of indigenous religions in Africa. ...

Limitations on Religious Rights: Problematizing Religious Freedom in the African Context
  • Citing Article

... Rather than viewing the various discourses, institutions, and mechanisms associated with transitional justice as "technical" in nature, critical approaches instead interrogate the politics and political economy of transitional justice (An-Na'im 2013;Meister 2010;Mutua 2012). Critiques of transitional justice are oft en concerned with the relations of power that are naturalized by transitional justice repertoires and the diff use eff ects of transitional justice as a normative force. ...

A Critique of Rights in Transitional Justice: The African Experience
  • Citing Article
  • January 2011

... The establishment of the SCC intervened at a period when the ICC had received a lot of criticisms from African countries, for its perceived bias against African countries (Keppler 2012), its obstruction of post-conflict reconciliation efforts (Austin and Thieme 2016), limited resources and dependence on state cooperation (Mutua 2010;Werle et al. 2014). Some authors (Du Plessis 2010; Werle and Vormbaum 2017; Omorogbe 2019) carry the African voice on the need for African alternatives to the ICC which will be well suited and African context sensitive to promoting accountability and peacebuilding. ...

The International Criminal Court in Africa: Challenges and Opportunities
  • Citing Article
  • September 2010

SSRN Electronic Journal