Human rights are entitlements by virtue of being a human being.
They have basic characteristics like inherent, fundamental, inalienable, indivisible, universal and interdependent. However, our Kenyan culture contributes immensely to shaping how we live in society and cannot be overlooked even in our laws.
Cultural relativism is the recognition that many cultures have their own beliefs, values and practices that have developed in particular historical, political, social, material and ecological contexts.
It thus makes sense that they would differ and none are necessarily right or wrong or good or bad. Just to mention, there are societies where burning of corpses is the norm but that would be a retrogressive culture against the society grain in Kenya.
For every culture, some moral judgements are valid but none is universally valid. Every moral judgement is culturally relative. Nevertheless, some are. For instance, no parent would easily justify marrying their child(ren).
The law must at all times dictate morality and not vice-versa. There are “Western values” that are not necessarily moral in our society, though packaged as human entitlements; to most Kenyans, they are a poisoned chalice.
Learning from the tough lessons of trying to transpose English law to Africa, Lord Justice Denning, noted in 1955: “Just as with the English oak, so with the English common law: One could not transplant it to Africa and expect it to retain the tough character which it had in England.
It had many principles of manifest justice and good sense which could be applied with advantage to peoples of every race and colour all the world over, but it had also many refinements, subtleties and technicalities which were not suited to other folks… In these far-off lands, the people must have a law which they understood and which they would respect.”
Culture borrowing
Our society has rational minds and borrows culture that suits the wider public; like doing away with the mandatory death sentence to join the league of free worlds is a plus, bearing in mind the sanctity of the right to life.
Kenyans must strictly guard their right to cultural identity enshrined in the Constitution as it considers the clamour for more freedom and rights to practice a “new” culture. Does it mean that because few criminals feel it is morally their right to practise criminality they ought to pass a law to support it? If that were the case, then even condemned vices like corruption should be backed by the law.
The drafters of the Constitution thought it wise to have a dual citizenship clause, creating the freedom for Kenyans who may want to explore, practise and exercise a different culture to what is on offer and are limited by the laws to pursue that route.
There is a school of thought that says culture is never static and it changes over time. That is true but the law is the sieve through which these cultural shifts are measured and only legal ones remain; for example, the rationale behind outlawing female genital mutilation, a previously rampant cultural practice.
Our law changes with the times and our society has a culture protected by the same law.
