Reframing Kurtz’s Painting: Colonial Legacies and Minority Rights in Ethnically Divided Societies

Minority rights constitute some of the most normatively and economically important human rights. Although the political science and legal literatures have proffered a number of constitutional and institutional design solutions to address the protection of minority rights, these solutions are characterized by a noticeable neglect of, and lack of sensitivity to, historical processes. This Article addresses that gap in the literature by developing a causal argument that explains diverging practices of minority rights protections as functions of colonial governments’ variegated institutional practices with respect to particular ethnic groups. Specifically, this Article argues that in instances where colonial governments politicize and institutionalize ethnic hegemony in the pre-independence period, an institutional legacy is created that leads to lower levels of minority rights protections. Conversely, a uniform treatment and depoliticization of ethnicity prior to independence ultimately minimizes ethnic cleavages post-independence and consequently causes higher levels of minority rights protections. Through a highly structured comparative historical analysis of Botswana and Ghana, this Article builds on a new and exciting research agenda that focuses on the role of long-term historio-structural and institutional influences on human rights performance and makes important empirical contributions by eschewing traditional methodologies that focus on single case studies that are largely descriptive in their analyses. Ultimately, this Article highlights both the strength of a historical approach to understanding current variations in minority rights protections and the varied institutional responses within a specific colonial government

Governing dissent in the central Kalahari game reserve: 'development', governmentality and subjectification amongst Botswana's bushmen

This article explores the theme of ‘disciplining dissent’ by examining how dissenting conduct is channelled into ‘acceptable’ and ‘productive’ practices. To this end, it uses Michel Foucault's framework of ‘government’ in order to highlight the operations of a diffuse and generalized form of ‘disciplining’, where this refers to the directing or ‘structur[ing of] the field of action of others’. Through this framework, the article illuminates that subjects do not cease to be governed when they undertake certain practices customarily categorized as ‘resistance’ or ‘dissent’. On the contrary, the article explores how dissenting practice itself ‘disciplines’ the conduct of subjects. The article analyzes the pivotal role played in this by processes of subjectification, highlighting how ‘governing’ (dissenting) behavior may well require the incitation of forms of subjectivity, and ways of being, that are open to such acceptable forms of dissenting and resisting. The article examines the case of Botswana's Bushmen and their attempts to resist and revoke their relocation by the Government of Botswana from the Central Kalahari Game Reserve since 2002 as an important contemporary site illustrative of the interplay of governing, dissent, and subjectification

Forest conflicts and the informal nature of realizing indigenous land rights in Indonesia

Despite a widening legal scope for indigenous rights, the invocation of indigeneity to claim land rights rarely empowers marginalized communities. This article develops an explanation for why this formal recognition of community rights actually has little substantive impact on local struggles over land in Indonesia. Employing almost two years of fieldwork on how rural communities employ indigeneity-based land claims in South Sulawesi, it argues that claims for land rights on the basis of indigeneity are settled not simply on the basis of law, but also on that of the relative bargaining positions and the character of informal linkages between communities, their mediators and local authorities. Indigenous status therefore must be understood as a privilege most likely to be obtained by those groups with relatively strong connections to influential state actors. In contrast, communities that are in conflict with local state actors tend be excluded from obtaining the status of indigeneity and hence the state is likely to deny them their land rights claims.Effective Protection of Fundamental Rights in a pluralist worl