A Rights Framework for the Protection of Traditional Cultural Expressions in Africa

Abstract

In this chapter, I argue that fundamental human and peoples’ rights protection will significantly enhance both the negative and positive protection of traditional cultural expressions. The protection of traditional cultural expressions under the banner of human and peoples’ rights significantly enhances the capacity of communities to act as legal subjects in the protection of their rights. The analysis of the negative protection of traditional cultural expressions revealed an attenuated capacity of communities in African states to protect their traditional cultural expressions because the protective framework is, in the main, facilitated by national institutions. Communities are therefore hampered in their ability to protect their traditional cultural expressions. A peoples’ and human rights framework acknowledges the entitlement of communities to protect their traditional cultural expressions and therefore complements the legislative models for the positive and negative protection of folklore. A peoples’ and human rights framework acts as a default standard that, at the very least, will guide and enhance legislative development. The proposition that this chapter explores is that traditional cultural expressions can be protected indirectly through both collective rights and a number of specific human rights. This proposition is based on the principle that only individuals can directly enforce human rights. The fact that communities can enforce rights directly to protect traditional cultural expressions is an emerging idea that is not generally accepted. The focus of this chapter is primarily the Bill of Rights in the national constitutions of the African states, as well as extant jurisprudence.