“Holmes, J., dissenting.” That phrase is known by every student of the law. Among other things, it refers to a 1919 opinion that Justice Oliver Wendell Holmes penned in a famous First Amendment case – Abrams v. United States. The “best test of truth,” the jurist opined therein, “is the power of thought to get itself accepted in the competition of the market.” This celebrated paean to free speech liberty arose in the context of a dissent Holmes wrote on behalf of several Russian dissidents charged with violating the Sedition Act of 1918. He strongly opposed the Court's affirmation of a twenty-year sentence for the dissidents, who had distributed leaflets calling for a general strike to prevent shipment of arms to Russia. In this and other matters, Holmes “wholly disagree[d] with the argument of the government” and the majority of the Justices.

Notably, judicial dissent is a case of institutionalized opposition. That is, dissent is a vital part of the tradition of appellate decision making. In that sense, it may not operate in the same conceptual quarters as other far riskier acts that might be labeled as dissent. Still, whatever one makes of this phenomenon, few would contest that it is a paradigmatic example of dissent, if only because it is expressly labeled so. However the word “dissent” is used, then, it must at least include an expression of judicial divergence from the majority opinion of a court.

The elevated spirit of dissent is captured not only by lawful protest, but sometimes also by its opposite. Only reflect on the revered admonitions and actions of Henry David Thoreau, Mohandas Gandhi, and Martin Luther King. Or consider the message of a noted AIDS activist, Aldyn McKean: “I have an arrest record for civil disobedience that spans 23 years and covers seven states, the District of Columbia, and one foreign country. However, I never go to a demonstration to get arrested; I go to bring about change, and am willing to risk arrest to produce that desired change.”

Quintessentially, McKean is an activist – someone who takes unlawful action to advance his sense of social justice. But not all civil disobedience is cut from the same conceptual cloth. Take, for example, an instance of principled inaction, as when someone unlawfully declines to serve in the military. Nearly a half-century ago, on April 28, 1967, a famous American boxer publicly refused induction into the Army, this at the height of the Vietnam War. Citing religious beliefs, Muhammad Ali boldly reaffirmed what he had declared earlier: “I ain't got no quarrel with them Vietcong.” This unlawful act of conscientious protest cost him dearly: he was stripped of his championship title and barred by every state athletic commission from fighting for almost four years. Moreover, he was indicted and convicted of violating the federal draft law. Absent a Supreme Court ruling reversing his conviction on technical grounds, the widely spurned Ali would have gone to prison for five years.

INTRODUCTION

This chapter has two related objectives. First, it proposes to sketch out a community electricity co-operative model, as a further step towards encouraging participation among individuals in different communities. It aims to build on discussions in the previous chapter by considering, in rather hypothetical terms, a particular option that might be open to diverse communities through their Community Forums. The aim is also to build on discussions in Chapter 5, which proposed human rights as the ethos for electric sector reform, especially to enable more access for the poor. The rather tentative nature of these proposals is because they are presented as a prolegomenon. They indicate, rather than prescribe, in specific detail, how practice should follow. They are not a step-by-step guide to what communities should do or how they should do it.

The second purpose of this chapter is to underscore the importance of co-operation and participation in the pursuit of electricity, something that is linked to and can be built from discussions in Chapter 4 of this book on the social market philosophy. The objective, then, is to demonstrate the possibility of creating a social model of electricity that can avoid the shortcomings of the dominant profit market model, one that creates the atmosphere for solutions to be worked out through the participation of those mostly affected. Co-operatives, as it is argued, provide a practical example of how a community can participate in the supply of electricity.

… the question of good governance in Africa came up. But it came up as a condition of giving aid to African countries … in practice that phrase meant and means those countries having multi-party systems of democracy, economies based on the principle of private ownership and of international free trade and a good record of human rights: again as defined by the industrialised market economy countries of the North. It was in this kind of context that we in Africa heard about ‘good governance’ … For used in this manner, good governance sounded like a tool for neo-colonialism. We have therefore tended to despise the concept even as, out of necessity, we try to qualify under it.

INTRODUCTION

In this chapter, I focus on one of the most influential mainstream institutional responses to questions of poverty, especially the poverty caused by the inability to access water, healthcare, electricity and other economic and social rights, among other problems of development in Africa. Many such problems are assumed to arise from the existence of a profound governance question, one that (as the mantra suggests) can only be resolved by the concept of good governance. Good governance is a concept inspired by the Bretton Wood Institutions' (BWIs) lending initiatives. Its over-arching philosophy seeks to substitute the state for the market in processes of governance, particularly (as discussed in more detail in Chapter 4) in the process of governance of human rights.

INTRODUCTION

The relationship between human rights and community is not straight-forward or uncontroversial. On the one hand, individuals, mainly on account of their human rights, are oriented to live isolated, self-centred or narcissistic lives, absolved from duties and responsibilities, or simply unable to show affection and empathise with others. On the other hand, a strong commitment to community implies a threat to the autonomy or identity of individuals as a result of the aggressive assertion of the collective good. In this chapter, I want to propose a specific way of unlocking the deadlock between human rights and community from the standpoint of African moral values of human interdependence; the essence of community, belonging, societal harmony and peaceful co-existence with others.

The success of the proposition above depends very much on challenging the common understanding of human rights. The hypothesis in this chapter would be implausible if the understanding of human rights, as individual claims, remains intact. The success of the proposal depends on the need to tamper with the individualism that underpins human rights by supplanting it with values of interdependence, relatedness and mutual reciprocity, something that is derived from community. It is only from the standpoint of human interdependence that one can begin to realise the possibility of speaking of human rights and community in mutually reinforcing terms, that is, as concepts that can work together and not against each other.

Two significant aspects of life in Nigeria have inspired this book. The first is the relationship between the lack of access to water, healthcare, education and electricity and the abject level of poverty in the country. Life for millions of Nigerians is characterised by daily experiences of suffering due to their inability to access, by any acceptable standards, some of the most basic requirements for sustenance. Indeed, language, particularly the dominant language of economics, tends to fail in providing the kind of analytical, descriptive and normative tools capable of assisting people to appreciate or articulate the intrinsic nature of the objects above, including the suffering entailed in being unable to access them.

To its credit, the economic concept of public goods, as the objects above have dominantly come to be known, draws attention to the collective nature of their consumption and production, something that has made them unsuitable for market provisioning. As important as this attribute may be, their public-ness, in terms of collective enjoyment or supply, does not sufficiently explain why they should be valued, so much so that they should benefit from special legal protection.

INTRODUCTION

This chapter aims to demonstrate how the good governance inspired reforms in Nigeria have translated into practice, using a case study of the reform proposals for its electricity sector. The chapter discusses and offers a critique of the current reform approach, particularly its legal and regulatory framework, as well as other salient aspects, such as access of the poor to electricity, rural electrification and consumer rights protection, among other key features.

The study of electricity reform in Nigeria is developed as the basis upon which to show the importance that human rights can have on increasing access to electricity, something that elides this and other neoliberal development inspired approaches. In doing so, and in contrast to the neoliberal approaches, I propose human rights not as a subjective right, but rather as the ethos or moral authority for electricity reform. It is acknowledged that my use of human rights in this context needs to be qualified or justified. To be clear, I am by no means suggesting that human rights can be used to address all the myriad problems of the Nigerian electricity sector, or that they are something that would make the electricity sector work. This would be too demanding, since such a task is uncharacteristic of the basic objective or understandings of the work of human rights.

INTRODUCTION

Human rights have, for at least two reasons, become a pervasive aspect of good governance. First, the normative language of human rights can arguably be seen as an instrument that nurtures, shapes, determines or validates good governance, and ultimately, the practice of development. Secondly, and the focus of attention in this chapter, is that the various initiatives and practices of good governance have themselves sustained the plurality of meanings and values of human rights. Good governance is now an important basis for the enjoyment of human rights, and it places the free-market economy (deregulation, devaluation and privatisation) as a key source of normativity for human rights. The purpose of this chapter, as such, is to consider and explain how the market-based human rights approach works, including providing reasons for its emergence, its philosophical underpinnings, its limitations, and the role of the Bretton Wood Institutions (BWIs) in the processes of its diffusion. In doing so, the chapter outlines and defends the general critique of the role of markets in human rights discourse.

INTRODUCTION

How should community be defined, operationalised or programmed in relation to the pursuit of particular human rights? How should community make human rights more effective in their task of shaping the pursuit of development in normative terms? Is participation, so to speak, possible within existing communities, or how can such communities be rejuvenated or created into sustainable organisational and decision-making bodies? What sort of problems can be anticipated with the introduction of community participation in human rights discourse, and how can such problems be addressed? These are among the concerns that motivate the analysis within this chapter.

The aim of this chapter is to expand on the substantive aspects of the theory of community, which, it is argued, can enable individuals, particularly the poor, to take part in processes that determine their human rights. It outlines the philosophical, structural and procedural requirements for community participation. This is, after all, because the tangible aspects of participation can only succeed if the structural framework is clear and right from the outset. Community participation, as such, cannot succeed or precede philosophical and structural under-pinning. This is, in essence, what the theory of community outlined within this chapter seeks to achieve. In doing so, the chapter expands on the three comprehensive components of the theory of community, which include what community is, or what it ought to be, the actual spaces of participation, and thirdly, a theory of deliberation for community participation.

INTRODUCTION

In this chapter, I consider another problem with human rights, one that does not feature prominently in the communitarian critiques discussed in the previous chapter. This chapter is concerned about what human rights offer as a way of understanding what it means to suffer and what human suffering entails by way of a response. This question raises two related issues. The first concerns the capacity of human rights to give insight into mass abuses of civil and political and economic and social rights or other injustices and forms of human suffering. In other words, do human rights offer sufficient conceptual resources to assist the proper articulation of suffering and vulnerability?

The second issue has to do with the nature of the human rights claim. It questions the extent to which human rights hinder our ability to recognise and respond to various forms of human suffering by preventing empathic or other more affectionate forms of interaction and relationships between people. In this context, I am referring to the adversarial or antagonistic nature of a human rights claim; that is, the extent to which it prevents the proper appreciation and articulation of human suffering and vulnerability.

This book has presented a theory of community as a viable alternative to traditional human rights approaches to development. Whilst I do not in any way dismiss the importance of these approaches, they do, however, suffer from the limitation of insufficiently grasping the nature and consequences of state failure and market exclusion. Similarly, they crucially fail to grasp the importance community plays in the lives of the poor, also as a result of the tragic nature of state failure and market exclusion.

The success of the proposition put forward in this book has largely been dependent on justifying and establishing a reciprocal relationship between the concept of human rights and community. The book is an attempt to establish discursively a relationship between human rights and community, as mutually reinforcing and supportive concepts. Crucial to this objective has been the need to re-think human rights from their individual claims, to the mutual obligation and identification between everyone. This has meant thinking of human rights as products of community and community values.

In terms of the practical relevance of the argument of this book, it will depend on how the theory of community can be applied, tested and adapted to different country contexts, as well as how it can be used to address problems related to other economic and social rights, such as access to water, education and healthcare. In saying this, one must not fail to recognise the differences between each of these economic and social rights, which make it difficult to generalise or apply the theory of community without, at least, some adjustments.