:
By Innocent Maja
Innocent Maja is the Senior Partner of a Zimbabwean law firm styled Maja and Associates Legal Practitioners. He is also the Executive Director of Centre for Minority Rights and Development, a Legal Director of the Anti-Piracy Organization of Zimbabwe and sits on various Boards as a Trustee including Centre for Human Rights and Development Swaziland, Domboshawa Theological College Trust, Glory Givers International, The Mozambiquan Community in Zimbabwe Trust and Shiloah Zimbabwe Trust. He holds a Bachelor of Laws Honors Degree from the University of Zimbabwe and a Master of Laws in Human Rights and Democratization in Africa from the University of Pretoria and is currently pursuing an LLD. He is also a Lecturer in the Private Law Department with the University of Zimbabwe's Faculty of Law.
Published April 2008
Does not the sun shine equally for the whole world? Do we not all equally breathe the air? Do you not feel shame at authorizing only three languages and condemning other people to blindness and deafness? Tell me, do you think that God is helpless and cannot bestow equality, or that he is envious and will not give it?
Constantine the Philosopher (Cyril), 9th Century A.D.[1]
TABLE OF CONTENTS
A: RATIONALE FOR PROTECTING MINORITY LANGUAGES
1.1 The threat of extinction of minority languages
1.2 The importance of language
B: THE NORMATIVE CONTENT OF MINORITY LANGUAGE RIGHTS
2.1 What is a minority language?
2.2 The normative content of language rights of minorities in international human rights law
2.2.1 The Normative content of minority language rights under the United Nations system
2.2.1.1 Rights that make mention of minority languages
2.2.1.2 Rights from which protection of minority languages can be inferred
2.2.2 The Normative content of minority language rights under regional human rights systems
2.3 Summation
C: LINGUISTIC SITUATION OF AFRICA
3.1 Linguistic history of Africa
3.2 African human rights instruments dealing with language rights
3.2.1 Express provisions relating to language rights
3.2.2 Provisions from which language rights can be inferred or implied
3.3 Language policy and practice in Africa
D: CONCLUSION AND RECOMMENDATIONS
4.1 Conclusion
4.2 Recommendations
4.2.1 Norms
4.2.1.1 The liberal approach
4.2.1.2 The conservative approach
4.2.2 Implementation
Introduction
There has been little scholarship in the human rights discipline on the human rights protection of minority languages in Africa. Yet minority languages remain marginalized and language issues have become one of the causes of conflict in Africa. This article intends to bridge that gap. It explores the nature and scope of protection of minority languages in Africa. The basic research question for this paper is: 'Are minority languages adequately protected in Africa?' From the research question, three critical sub-questions flow, namely: 'What is the normative content of language rights?', 'To what extent does the African human rights system protect minority languages?' and 'What measures can be taken at the national and regional level to improve respect for and protection of minority languages in Africa?' To this end the paper is divided into four parts. Part A lays a foundation on why minority language rights ought to be protected in Africa. Part 2 defines minority languages and establishes the global normative content of minority language rights. Part three explores the linguistic situation of Africa. Part 4 then proposes possible measures that can be taken to improve protection of minority languages in Africa.
Most minority languages[2] in the world are currently in rapid decline and face a serious threat of extinction.[3] Nettle and Romaine estimate that up to 90% of the world's languages are now considered endangered.[4] Crace[5] argues that
"[t]here are about 6,000 languages in the world yet 55 per cent of the population speaks just 15 of them. Economic imperialism has gone hand in hand with linguistic imperialism as people abandon their mother tongues in favor of the globally dominant English, Spanish, Arabic, Chinese and Russian."
Krauss further predicts from the present trends that of the 6000 languages spoken today, between 20% and 50% will 'die' by the end of the twenty-first century.[6]
On the African landscape, the drive towards national unity, social integration and construction of a national identity in most African countries has led to linguistic assimilation, linguistic loss and discrimination against linguistic minorities.[7] Dorian[8] vividly contends that
"It is the concept of the nation-state coupled with its official standard language . that has in modern times posed the keenest threat to both the identities and the languages of small [minority] communities."
Bamgbose[9] convincingly argues that the rationales for this approach are the notions that multilingualism inhibits national integration, and national integration necessarily involves the emergence of a nation state with only one national language. Linguistic diversity, linguistic minorities and minority languages have been viewed as problems. Minority language speakers are constructed as linguistic oddities, deficient, suffering from lack of knowledge of the dominant language and backward rather than owners of a positive resource, another language, or multilingual skills.
The nation state argument is not sustainable because it overlooks two salient points. Firstly, linguistic diversity per se is not a political problem. Rather, ignoring linguistic diversity is the problem. Secondly, national unity does not imply cultural or linguistic uniformity. Instead, nation states can be more representative and achieve stronger and sustainable unity if they guarantee the right of minority communities and their individual members to distinct language and cultural practices, and do not withhold resources or power from such communities.
The antagonism towards minority languages in most bilingual or multilingual African countries has led to linguistic assimilation and loss. May[10] argues that
"a 'majority' language - that is, a language with greater political power, privilege and social prestige - comes to replace the range and functions of a 'minority' language. The inevitable result of this process is that speakers of the minority language 'shift' over time to speaking the majority language. The process of language shift described here usually involves three broad stages. The first stage sees increasing pressure on minority language speakers to speak the majority language, particularly in formal language domains. This stage is often precipitated and facilitated by the introduction of education in the majority language. It leads to the eventual decrease in the functions of the minority language, with the public or official functions of that language being the first to be replaced by the majority language. The second stage sees a period of bilingualism, in which both languages continue to be spoken concurrently. However, this stage is usually characterised by a decreasing number of minority language speakers, especially among the younger generation, along with a decrease in the fluency of speakers as the minority language is spoken less, and employed in fewer and fewer language domains. The third and final stage - which may occur over the course of two or three generations, and sometimes less - sees the replacement of the minority language with the majority language. The minority language may be 'remembered' by a residual group of language speakers, but it is no longer spoken as a wider language of communication."
A review of literature in law, politics, sociology, anthropology and linguistics reveals that language is important in at least six ways:
Firstly, language is a medium of communication, mirrors one's identity and is an integral part of culture. Ngugi wa Thiongo referred to language as the soul of culture.[11] Put differently a person's language is a vehicle of their particular culture. Mumpande[12] contends cogently that
"This is clearly shown in proverbs and riddles. The former, for example, have dual meanings: a literal meaning and a metaphoric or cultural significance. When literally translated into another language, a proverb frequently loses its meaning and flavor."
He further argues that 'a community without a language is like a person without a soul.'
Makoni and Trudell observe that in sub-Saharan Africa, language functions as one of the most obvious markers of culture.[13] Webb and Kembo-Sure further note that in Africa, 'people are often identified culturally primarily (and even solely) on the basis of the language they speak.'[14] Examples include the Tonga, Ndebele and Shona in Zimbabwe and the Xhosa and Zulu in South Africa. Serpell notes that the Zambian languages are intimately bound up with many of the society's traditional practices, and enshrine in multiplex and subtle ways the epistemological foundations of indigenous moral values.[15] In this sense, linguistic diversity becomes symbolic of cultural diversity, and the maintenance or revitalization of language signals ongoing or renewed validity of the culture associated with that language.[16] Accordingly, linguistic diversity becomes symbolic of cultural diversity, and the maintenance or revitalisation of language signals ongoing or renewed validity of the culture associated with that language.
Secondly, language is a means of expression and allows a person to participate in community activities. It can be used as a medium of fostering a democratic culture. In this sense, language policy plays a vital role in the process of democratic transition.[17] According to the African Commission on Human and Peoples' Rights,[18]
Language is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.
Thirdly, languages are also valuable as collective human accomplishments and on-going manifestations of human creativity and originality. This is buttressed by the argument for language preservation by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) that[19]
The world's languages represent an extraordinary wealth of human creativity. They contain and express the total 'pool of ideas' nurtured over time through heritage, local traditions and customs communicated through local languages.
Fourthly, language can be a source of power, social mobility and opportunities. Williams and Snipper emphasize that in some quarters, language is a form of power.[20] The linguistic situation of a country's society usually reflects its power structure, as language is an effective instrument of societal control. According to Makoni and Trudell 'it is undeniably true that communities of speakers of smaller languages tend also to be the less politically empowered communities.'[21] May[22] contends that
Language loss is not only, perhaps not even primarily, a linguistic issue - it has much more to do with power, prejudice, (unequal) competition and, in many cases, overt discrimination and subordination. Language death seldom occurs in communities of wealth and privilege, but rather to the dispossessed and disempowered.
This normally leads to situations where majority or minority communities within African states become vociferous in support of their own identity and desire to ensure that their language, customs and traditions are not lost. In this regard, language becomes an almost inevitable point of contention between communities.
Fifth, linguistic loss is sometimes seen as a symbol of a more general crisis of biodiversity, especially indigenous languages that are seen as containing within them a wealth of ecological information that will be lost as the language is lost. This ecolinguistic school of thought regards saving endangered languages as an important part of the larger challenge of preserving biodiversity. In Keebe's words, 'the loss of a language is the permanent, irrevocable loss of a certain vision of the world, comparable to the loss of an animal or a plant.'[23] Nettle and Romaine[24] further argue that
Losing a language, irrespective of the number of speakers of that language, deprives humanity of a part of our universal human heritage insofar as the language embodies a unique worldview and knowledge of local ecosystems.
The biodiversity analogy has engendered the use of metaphors such as 'language survival and death'[25] and even more emotively, 'killer languages' and 'linguistic genocide.' Makoni and Trudell contend that this terminology highlights an ethical judgment that language loss is morally wrong, regardless of the particular conditions of its social uses, and that linguistic diversity is inherently good.[26]
Sixth, language has served both as a reason (or pretext) for brutal conflict, and as a touchstone of tolerance. Language can serve, in all spheres of social life, to bring people together or to divide them. Language rights can serve to unite societies, whereas violations of language rights can trigger and inflame conflict. There is, therefore, every reason to clarify the position of language rights in various African states and in international human rights law, and to analyze the experience of the management of multilingualism in diverse societies. This paper becomes useful in this regard.
The paper is predicated on the understanding that linguistic diversity is desirable, that all language groups should be accorded language rights and that the allocation of rights to minority groups is in fact in the interest of all groups. The paper is informed by Elson's proposed linguistic creed that:[27]
[A]ny language is capable of being a vehicle for complicated human interaction and complex thought, and can be the basis for a complex culture and civilization. Therefore, all languages deserve respect and careful study. . . .Interest in and appreciation of a person's language is tantamount to interest in and appreciation of the person himself. All languages are worthy of preservation in written form by means of grammars, dictionaries, and written texts. This should be done as part of the heritage of the human race.
It argues that substantive equality and equity of languages in Africa can be achieved through an enabling legal regime that guarantees linguistic diversity and enables Africans to assert their identity and culture and freely express themselves. Put differently, minority languages can be protected through linguistic human rights in Africa. The paper seeks a multidisciplinary understanding of linguistic human rights from the fields of law, sociology, politics, anthropology, economics and linguistics. It affirms Kontra et al's argument that[28]
Firstly, people need linguistic human rights in order to prevent their linguistic repertoire to be treated from becoming a problem or from causing them problems. Secondly, people need to be able to exercise language rights in order for their linguistic repertoire to be treated as, or to become, a positive, empowering resource.
International human rights law does not currently have an agreed definition of a minority language. This section will analyze the definitions proposed by different scholars in a bid to couch a working definition for minority languages.
Firstly, a minority language has been defined as 'a language spoken by a minority of the population of a country.'[29] This definition is problematic in that it overlooks the fact that the term 'minority' is not yet defined in international law. An understanding of the concept of 'minority' is therefore significant to understanding this definition of a minority language.
Francesco Capotorti[30] defines a minority as
A group numerically inferior to the rest of the population of a state, and in a non-dominant position whose members - being nationals of the state - poses ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religions and language.
This definition derives from the provisions of article 27 of the International Covenant on Civil and Political Rights (ICCPR) that limits minorities to national, linguistic and religious minorities. According to Capotorti, a minority can be identified by numerical inferiority, non-dominance and solidarity.[31] Jelena Pejic[32] explains the meaning of numerical inferiority, non-dominance and solidarity:
Pursuant to the express language of the definition, the numerical inferiority of a minority is to be established by comparison to the entire population of a state.Non-dominance has been understood not only as relating to political power, but also to economic, cultural, or social status. The sense of solidarity referred to in Capotorti's definition implies an awareness by persons belonging to a minority group of the ethnic, religious, or linguistic characteristics that set them apart from the majority, and a desire to preserve those characteristics as central to the common identity.[33]
It is interesting to note that Capotorti's definition excludes refugees, foreigners and migrant workers who may arguably be regarded as minorities. This latter argument is supported by the United Nations Human Rights Committee General Comment No. 23 which states
The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language.[They] need not be citizens of the State party. A State party may not, therefore, restrict the rights under article 27 to its citizens alone. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.[34]
Capotorti's definition is narrow in limiting article 27 of ICCPR to citizens. The Kenyan High Court in IL Chamus v Attorney General of Kenya and Others was therefore correct to hold that minorities under modern and forward-looking jurisprudence should include non-citizens as well.[35] It would therefore follow that a minority language is a language spoken by ethnic, religious and linguistic groups (citizens and or non-citizens) that have a sense of solidarity, are numerically inferior and non-dominant.
Secondly, article 1 of the European Charter for Regional or Minority Languages (European Language Charter) defines minority languages as languages different from the official language(s) of that State traditionally used by part of the population of a state that are not dialects of official languages of the state, languages of migrants or artificially created languages. One weakness of this definition is that it limits minority languages to those spoken by citizens. As argued above, such an approach is inconsistent with article 27 of the ICCPR as read with the United Nations Human Rights Committee General Comment No. 23.
It is important to note that this definition introduces the issue of minority languages vis a vis official languages. It would appear that once a language is accorded official language status by the state, it (together with its dialects) ceases to become a minority language albeit it is spoken by a numerically inferior group of people. An example is English language. Even though very few people in Africa speak it, it is accorded official language status. Because of the protection bestowed by official language status, it is not a minority language. This approach makes sense for two reasons. Firstly, official language status confers language rights and places an obligation on states to ensure the public and private use of official languages. Secondly, official language status accords language rights to a language together with its dialects. It avoids situations where speakers of a dialect of an official language claim language rights that are already accorded to the official language.
In this sense, a minority language can be defined as 'a language different from the official language(s) of the state traditionally used by part of the population of a state that is not a dialect of official languages of the state or artificially created languages and includes languages of foreigners, migrants and visitors.'
Two preliminary points are worth noting before analyzing the human rights instruments that protect minority languages. Firstly, true democratic states are obliged to promote substantive equality through laws that enable minorities (including linguistic minorities) to preserve their characteristics. The Minority Schools in Albania Advisory Opinion 6 of the Permanent Court of International Justice[36] brilliantly sums this up as follows:
The idea underlying the treaties for the protection of minorities was to secure for them the possibility of living peaceably alongside of the population, while preserving their own characteristics. In order to attain this objective, two things were regarded as particularly necessary. The first was to ensure that members of racial, religious and linguistic minorities should be placed in every respect on a footing of perfect equality with the other nationals of the state. The second was to ensure for the majority elements suitable for the preservation of their own characteristics and traditions. These two requirements are indeed closely interlocked, for there would not be true equality between a majority and a minority if the latter were . compelled to renounce that which constitutes the very essence of its being a minority.
Secondly, there is a distinction between standards that are part of international law and principles that are morally or politically desirable. The former indicate the language rights that are protected by international human rights law and the latter are not binding on states but can be of persuasive value in advocating for law reform. Such non-binding principles are sometimes referred to as 'soft law', and may shape the practice of states, as well as establish and reflect agreement of states and experts on the interpretation of certain standards.[37]
International law, unlike domestic law, depends on the consent of the state concerned for it to be binding. Such consent is expressed where a state ratifies a treaty or can be inferred from established and consistent practice of states in conducting their relationships with each other. Put differently, states are bound by the provisions of treaties that they ratify as well as practices that constitute customary international law. Other sources like declarations, principles, recommendations, resolutions and writings of eminent scholars are not binding on states.
(a) Customary International Law
Customary international law refers to 'general practice of states accepted as law.'[38] In other words, customary international law results when states follow certain practices generally (state practice) and consistently out of a sense of legal obligation (opinio juris).[39] Customary international law binds all states (except those that may have objected to it during its formation) irrespective of whether they have ratified any relevant treaty.
According to Sepúlveda et al[40]
Many scholars argue that some standards laid down in the Universal Declaration of Human Rights (which in formal terms is only a resolution of the United Nations General Assembly and as such not legally binding) have become part of customary international law as a result of subsequent practice; therefore they would be binding upon all states.
United Nations Human Rights Committee General Comment No. 24 summarizes the rights in the Universal Declaration that have become part of customary international law as:
[A] State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women and children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language.[41]
What emerges from this discourse is that under customary international law states cannot deny linguistic minorities the right to use their own language. However, it is not yet clearly established that customary international law affords minority language speakers a positive right to use their own language.
(b) Treaties
Treaties are legally binding and oblige states to respect, protect and fulfill human rights (the tripartite typology). Sepúlveda et al[42] cogently summarize the meaning of the tripartite typology as:
.The obligation to respect requires the state to refrain from any measure that may deprive individuals of the enjoyment of their rights or of the ability to satisfy those rights by their own efforts. The obligation to protect requires the state to prevent violations of human rights by third parties.. The state is obliged to prevent violations of rights by any individual or non-state actor; to avoid and eliminate incentives to violate rights by third parties; and to provide access to legal remedies when violations have occurred in order to prevent further deprivations. The obligation to fulfill requires the state to take measures to ensure, for persons within its jurisdiction, opportunities to obtain satisfaction of the basic needs as recognized in human rights instruments, which cannot be secured by personal efforts.
Binding treaty are adopted and ratified under the United Nations and regional human rights systems and interpreted by treaty bodies established by them through general comments, resolutions and decisions. Accordingly, the dissertation will use general comments, resolutions and decisions of treaty bodies as useful tools to clarify the normative content of minority language rights.
There is no specific United Nations human rights instrument exclusively devoted to the protection of minority languages. Different treaties make reference to minority languages. Interestingly, a study of these treaties reveals that international law does not provide for an unqualified right to use a minority language. Instead minority language rights can be gleaned from existing rights that affect minority languages. According to Fernand de Varennes[43]
There is not in the present state of international law an unqualified 'right to use a minority language' but there are a number of existing rights and freedoms that affect the issue of language preferences and use by members of a minority or by the state.
Accordingly, this paper will review rights that make specific mention of minority languages and those from which minority language protection can be inferred.
Article 27 of the ICCPR obliges states not to deny linguistic minorities the right to use their language.
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.[44]
The question that inevitably arises is what is the nature of protection afforded to minority languages by article 27? Pejic[45] argues that article 27 is ambiguous in the following respects
First, by employing the words "in those States in which . . . minorities exist," Article 27 leaves states the option of declaring that they have no minorities, thereby excluding its application to persons within their territory or subject to their jurisdiction. Secondly, the rights provided for in Article 27 are conferred on persons belonging to ethnic, religious, or linguistic minorities. It is left to interpretation whether citizenship is a precondition for invoking Article 27 and whether indigenous groups are entitled to the rights for which it provides. The third limiting element is that Article 27 is the only provision in the Covenant which is negatively phrased. Instead of stating that persons belonging to minorities "shall have" the rights specified, it declares that they "shall not be denied" those rights. The exact meaning of this phrase has been the subject of much debate, carried on to this day. Finally, the text also leaves ample room for interpretation regarding the subjects--individuals or groups--to which it applies. While it obviously confers rights on individual members of minority groups, the phrase "in community with the other members of their group" suggests that a collective element was intended as well.
With respect, Pejic's concerns are more apparent and of an academic interest than real. The United Nations Human Rights Committee General Comment No. 23 clarifies the ambit of article 27 of the ICCPR:
The Committee observes that this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant. The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. Just as they need not be nationals or citizens, they need not be permanent residents.The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria. Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied.[46]
In short, article 27 of the ICCPR affords individuals belonging to linguistic minorities (whether citizens or non-citizens) in a state the individual and collective right to use their language among themselves, in private or in public.[47] General Comment 23 further stipulates that the rights protected under article 27 depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by states may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language, in community with the other members of the group.[48] Article 27 should be distinguished from other instances where a minority language may be used irrespective of whether a minority group maintains its culture or language. For example, the right to be informed of any criminal charges in a language that you understand and to an interpreter during trial is a general right that can be exercised by anyone irrespective of whether they belong to a minority group or not.[49]
Other explicit rights granted to linguistic minorities include a qualified right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each state, teaching of their own language.[50] Children of migrant workers and indigenous peoples have a right to be taught in their mother tongue.[51] It is important to note in this regard that International Labour Organisation Convention 107 encourages 'a progressive transition from the mother tongue or the vernacular language to the national language or to one of the official languages of the country'[52] (linguistic assimilation) and International Labour Organisation Convention 169 encourages preservation of the mother tongue concurrently with attainment of fluency in the national or official language (linguistic diversity). This paper advocates for the latter approach.
The right to use a minority language can be implied in the rights to private and family life, freedom of expression[53] and non-discrimination.[54] It therefore follows that a government which, by legislation or other conduct, forbids family members to use a language amongst themselves would be in breach of the right to private and family life as well as freedom of expression. Fernand de Varennes[55] gives very interesting examples. He argues that where a government authority bans the private use of a minority language in public areas (for example banning individuals from having a private conversation in their own language in public streets, or banning the use of a particular language in a public park, etc), this breaches the right of freedom of expression and amounts to discrimination on the basis of language.
He argues further that a state cannot forbid individuals to use a minority language in private correspondence or communications (including private business or commercial correspondence by telephone, electronic means, etc). He avers further that a prohibition making it illegal to play any song, or to stage theater presentations, operas, etc, either in private or in public, in a particular language would be violation of rights that already exist in international law. He contends further that a government that prevents an individual from having a name or surname which is not in an official language or which does not feature in a prescribed list violates the right to use one's name which falls under the ambit of article 27 of the ICCPR.[56] In any case, he argues, names and surnames constitute a means of identifying persons within their families and the community, and as such are an inseparable part of private and family life.
It is worth noting that under international law, freedom of expression includes the right to linguistic expression.[57] Fernand de Varennes states that members of linguistic minorities (as well as all other individuals) have the right to use their language of choice in private activities involving expression. This includes the use of outdoor commercial signs and posters[58] and applies to the language used in the private display of signs, posters, or other notices of a commercial, cultural and even political nature. Private broadcasting in a minority language is permitted. There is also a right to create and operate private educational facilities in which a minority language may be used as a medium of communication. Minority languages may also be used during religious worship or other religious practices, during a private part of a marriage ceremony, in private economic activities, within private groups and organizations and by political associations or parties.[59]
An emerging discourse is whether the state is obliged to guarantee use of minority languages in public. One school of thought believes that such 'right' does not exist and the other emphasizes that such a 'right' exists but should only be exercised by members of national minorities.[60] However, this matter was authoritatively decided in the Diergaardt case in which Afrikaans in Namibia alleged discrimination on the basis of language. The Human Rights Committee held that minority Afrikaans speakers in Namibia were victims of a violation of article 26 of the ICCPR and were entitled to the use of their mother tongue in administration, justice, education and public life.[61]
Only the Inter-American and European systems of human right will be discussed here because a discussion of the African system will be done in Chapter 3. The Inter-American system has neither a specific treaty dealing with minority languages nor any specific provision expressly providing for minority languages. However, minority language rights can be inferred from rights like freedom of expression[62] and freedom from discrimination on the ground of language.[63]
The European system has two specific conventions dealing with protection of minority languages. The Framework Convention for the Protection of National Minorities provides for specific rights and obligations. Articles 5 and 6 oblige states to be tolerant to, take measures and promote the conditions necessary to promote linguistic diversity. Article 11(1) recognizes the right of every person belonging to a national minority to use his or her surname (patronymic) and first names in the minority language and the right to official recognition of such names. Article 14 provides for the right to learn in a minority language. Minority language rights are also inferred from freedom of expression[64] and freedom from discrimination on the ground of language.[65]
The European Charter for Regional or Minority Languages (European Language Charter) uses the words 'regional' and 'minority' languages interchangeably and obliges states to take measures to protect minority languages (in addition to official languages) in the regions where they are spoken most. It defines minority languages and confirms the value of language as an expression of cultural wealth. It enjoins state parties to encourage and or facilitate the use of minority languages in speech and writing, in public and private life and promote study and research on minority languages at tertiary institutions in areas where regional languages are spoken.[66]
It is imperative to note that the European Language Charter does not provide for specific rights but state obligations. This distinction is significant in showing that a breach of the treaty does not entitle any individuals to make any 'legal claims' and remedy at the international or domestic level but would have to be treated as a failure of a state's obligations in international law. The explanatory document from the Council of Europe and the plain wording of the treaty reveal that the European Language Charter is not directly enforceable and does not grant any right to any individuals. The European Language Charter therefore creates legal obligations on states, but does not award any 'language rights' to individuals (or minorities).
Article 8 obliges states to make available a substantial part of pre-school, primary, secondary, technical, vocational, university and higher education in the relevant regional or minority languages. The curriculum should also include the history and the culture that is reflected by the regional or minority language. Article 9 obliges states to ensure that, if the interests of justice are not hampered, minority languages are used in criminal and civil proceedings and proceedings before the courts that involve administrative matters in both procedural and substantive issues. Article 10 provides for the use of minority languages by administrative authorities and in public service including use of minority languages in family names, documents used, deliberation, and recruitment.
Article 11 obliges states to guarantee the use of minority languages in the media. States should ensure that there is at least one radio station and television channel in a minority language and must encourage the training of journalists in minority languages. Article 12 enjoins states to facilitate the use of minority languages in all cultural activities. Article 13 obliges states to guarantee the use of minority languages in economic and social life that includes public and private companies and hospitals. It even encourages state parties to enter into bilateral agreements that benefit regional language speakers who speak a similar language. The Convention further obliges states parties to submit periodic reports which are examined by a committee of experts.
Five points can be drawn from the above discourse. Firstly, the United Nations human rights instruments do not define a minority language. Secondly, the definition enshrined in the European Language Charter is narrow because it is restricted to citizens when international law recognizes non-citizens as minority language speakers. Thirdly, both customary international law and the United Nations human rights instruments protect the minority languages of citizens and non-citizens through a hybrid of individual and collective rights. Fourthly, these rights are either expressly or implicitly provided for. Express rights include the right to use a minority language among linguistic minorities in private and public life, right to be taught in a mother tongue, run educational institutions even in a minority language, the right to informed of allegations of criminal charges in a minority language and the right to an interpreter. Minority language rights can be inferred from the rights to a private family life, freedom of expression and freedom from discriminated on the basis of language. Fifth, even though the European Language Charter is the most comprehensive instrument devoted to minority or regional languages, it only enumerates state obligations and does not afford individuals rights.
The African problems associated with the protection of minority languages arguably have their genesis in the colonial domination of Africa. Pre-colonial Africa had communities bound together with culture and language. Language was a vehicle of culture. People were culturally identified by the languages they spoke.[67]
When the colonialists occupied Africa, they viewed linguistic diversity as a barrier to their hegemony and administration of their new colonies.[68] The French, British and Portuguese particularly adopted language assimilation policies in most of their colonies. The French and Portuguese were more radical in their assimilation policies than the British who were a bit accommodative of African languages. The colonial powers accorded official language status to their foreign languages. The relics of such policies are prevalent in Africa today where states are divided into English-speaking, French-speaking and Portuguese-speaking.
Colonial language policies forced Africans to speak foreign languages as a medium of communication, a source of acquiring information and language of opportunity. Languages like the English-based Pidgin developed in British colonies in West Africa affirming the belief that any variety of English was preferable to attempting to communicate in the plethora of African languages in use by the colonized populations.[69] In Zeleza's words:[70]
Colonialism not only brought European languages to Africa, it also sought to invent indigenous languages, and to establish hierarchies between them, in which the European languages were hegemonic, as part of the process of constructing colonial states, spaces, and societies.
In education, European-style education was introduced in European languages in African communities over the first decades of the colonial era. African languages and cultures began to be marginalised in the new world order. This became the culture of education. When the British tried to introduce adapted education[71] - that advocated for a curriculum embedded in local knowledge and local languages - in their colonies, African parents vigorously rejected it arguing that it was an attempt to keep them from acquiring European knowledge and power.[72] They rejected both the local knowledge curriculum and the local language in which it was to be taught. This sense of the inappropriateness of African language as a medium of conveying knowledge in the formal classroom continues to be a widespread perception among African parents today.
This scenario created a group of black elites who became superior by virtue of their mastery of the foreign language. The foreign language became a language of opportunity and a pathway to good jobs, material benefit and power in the colonial Africa. As the black elite grew in size and quality, they became far removed from their African culture. They denigrated and belittled African languages as primitive.
According to Prah:[73]
Colonialism triumphed through the perpetration of various degrees of ethnocide. The cultural world of the colonized was condemned in the names of inferiority and irredeemable primitivism. The languages installed by the colonial overlords dethroned the supremacy of African languages in the affairs of Africans. These languages of conquest and empire slowly formed the linguistic basis for the creation of an indigenous elite, which in the language of the time was "acculturated" and was in "culture contact" with an overwhelming western colonial culture. Western languages did not triumph on account of their innate or inherent superiority. They were culturally and politically installed only after the armed and forcible subjugation of native peoples.
Colonialism therefore introduced numerous linguistic problems that Africa is still grappling with today. Firstly, it separated language and culture. Secondly, competence in the foreign language became a medium of access to information, securing good jobs and dominating in politics. Thirdly, indigenous (minority) languages were marginalized.
The advent of independence saw the emergence of what Praah calls 'nation states' in Africa that embraced colonial policies. African states considered the formal recognition of multiple languages and language communities as a significant barrier to national integration.[74] They argued that national integration necessarily involves the emergence of a nation state with only one national language.[75] This argument overlooked two salient facts. Firstly, linguistic diversity per se is not a political problem. Rather, ignoring linguistic diversity is the problem. Secondly, national unity does not imply cultural or linguistic uniformity. Instead, nation states can be more representative and achieve stronger and sustainable unity if they guarantee the right of minority communities and their individual members to distinct language and cultural practices.
Some African states argue that linguistic diversity retards development. Prah addresses this:[76]
Language is the central feature of any culture. It relates to all areas of the social, economic and political lives of the people. It is in language that the genius of people is ultimately registered at both the individual and collective expression of people and societies. It is in the language of the masses that social transformation in its most far-reaching sense makes an impact. A society cannot develop if language is the monopoly of a small and restricted minority whose orientation is directed outside, towards cultures that have had an imperial or colonial relationship with the society that is endeavoring to develop. Education for the masses must be done in the languages of the masses so that development becomes a mass phenomenon, which is part of mass culture. Only then will development translate relevantly in the lives of the broad and major sections of the population. It is my view that language is the key to the challenge of African development.