HUMAN-RIGHTS-PAMPHLET [PDF]

Zitiervorschau

HUMAN RIGHTS NOTES

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TOPIC 1 INTRODUCTION TO HUMAN RIGHTS This introductory session to the course will cover the following aspects: a) the concept of human rights b) categories of human rights c) beneficiaries of human rights

The Concept of Human Rights A right is a claim to something or authority to do something. Human rights are said to be inalienable entitlements that each person has by virtue of being human. As we can see from this definition, human rights go to the root of a person’s existence. This also means, human rights are God given since they exist because of a person’s existence. Human rights may be said to be natural entitlements that no one can take away. Therefore, each person is free to enjoy his/her rights. Although inalienable, human rights, as we will see later are not absolute in their enjoyment. Human beings who possess the rights are found in communities. Therefore, human rights do not exist in a vacuum, they exist where people are. As such, where one person’s rights end, the other person’s rights start. This means that in the enjoyment of human rights, consideration must be given to the rights of others. This promotes co-existence.

1. Types of Rights There are several types of rights each with its own connotations. The major groups are moral rights, legal rights and constitutional rights.

a.) Moral Rights Moral rights are those rights that have something to do with principles of right and wrong behavior. These are standards based on people’s sense of what is right and acceptable. A moral right is not enforceable by the state through courts of law. It however binds society in its interaction. Its

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effectiveness lies in the force of public opinion and one’s conscience. A moral wrong is frowned upon by society and one may lose the confidence of the family or friends.

b.) Legal Rights A legal right on the other hand is established by law. It is a legal right because it is found in legally established documents and laws. It is enforceable in the courts of law.

c.) Constitutional Rights Constitutional rights are those found in the constitution and enforced by the courts. These are stated in the bill of rights. They are fundamental rights because they are ordained in the constitution which is the supreme law of the land. One of the most famous constitutional rights is the freedom of assembly, another is the freedom of expression. These are usually litigated upon by those who claim to have their rights infringed. See Christine Mulundika & 7others v The People (19951996) ZR 1. It is important to know that for one to claim a right, that right should be legally enforceable. This is referred to as justiciability. The rights contained in the bill of rights are justiciable, meaning a person can sue to claim any of the rights if infringed. Even though justiciable and fundamental, constitutional rights are not absolute as they have a number of derogation clauses. These are limitations embedded in each right except the freedom from torture

2. History of Human Rights Human rights have existed from time immemorial. This arose from the need to protect the individual from the power of the sovereign kings. In addition, the atrocities of the second world war brought to the fore the urgent need to promote and protect human rights to reduce the suffering of many innocent individuals. This journey was not always smooth as it faced resistance from some quarters of society such as the European rulers. The proper grounding of human rights came after the creation of the United Nations. This brought about the unified regard for human rights and human dignity. With the adoption of human rights as fundamental came the need to have institutions for the protection of the said rights. The world today regards human rights as universal and they form an integral part of international law and international relations. To that end, the Charter of the UN states

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‘the people of the united nations reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.’ One of the purposes of the UN is to ‘achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.’ The non-discrimination clause in the application of human rights was coined here and is found in many other instruments as well as national laws. Human rights are inherent in human nature and are foundations of human existence and co-existence. Human rights are the hallmarks of democratic societies. The development of human rights was also influenced by philosophical postulations such as those of the natural law theory, positivism, culture, secular ideas among others. In recent times, it has been influenced by feminist theories as well. For our purposes, we shall focus on the natural law and positivists influences.

a.) Influence of Natural law The Natural law theory is individual centered emphasizing individual freedom and the inherent nature of the rights. It postulates that rights are not given but that they come naturally to all human beings. The natural law theory is founded on two philosophical conceptions; these being natural law or the law of nature and the social contract. Basically, the natural law theory subordinates man-made laws to individual claims. The natural law theory states that people have rights against the government. This theory postulates that the prescriptive rules of law as to what is right or wrong are self-evident in nature or ascertained through reason. This natural law is given by God and hence any law made by man is inferior to it. Accordingly, the individual is regarded as sovereign, superior possessing a whole range of rights and liberties in a state of nature. People are said to possess certain rights in the natural state devoid of the intervention or support of society. As such, the individual brings these rights with him/her into society which is created not to destroy the rights but to protect them by enacting laws. As such an individual does not lose all the rights upon gaining civil status in civil society. Some rights are surrendered in order to enable society to function but other rights remained protected by natural law.

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According to John Locke’s thinking, individuals entered into a social contract whereby they made a pact to form civil society (pactum unionis) and in the second pact (pactum subjectionis) instituted government with political powers to protect their respective rights. Therefore, through this the individual gave up some of the rights in exchange for being part of society. The purpose of government therefore is to protect the individuals who in turn obey the laws. In the absence of protection, the people can decide to have another ruler.

b.) Influence of positivism Focus on the natural law theory declined in the 19th century although it revived later in the 20th century. The positivist theory took center stage. Positivists argued that there was nothing divine about law and that all rules were made and accepted as such. They refused the existence of natural rights stating that rights could only flow from the law of the society and could not come from any natural or inherent source. The focus on individualism postulated by natural law theory was despised and accused of having led to the French and American revolutions. Positivists make a clear distinction between the laws of science which govern the behavior of all physical entities in accordance with the unavoidable principle of physical causation and normative laws which lay down norms of human conduct. They make a clear distinction between the field of fact which is the ‘is’ and the field of ‘ought’. Is deals with ‘what is’ or lex lata or expository jurisprudence while ought deals with ‘what ought to be the case’ or lex ferenda or censorial jurisprudence. According to the positivists, what qualifies to be law is decided by the criteria set by the society in which the rule operates. Therefore, for the positivists, law must actually exist and should be capable of being found. They separate moral and legal principles stating that concepts of good or bad are irrelevant to the question of validity of a legal rule. A moral question does not deprive a legal rule of its validity. This is not to say a bad law is just and must be obeyed. It only means that a bad law does not cease to be legal because of its moral shortcomings. Accordingly, a judge cannot refuse to apply a law just because he or she believes the law to be bad because the judicial duty under the law is to apply the law whether it is bad or good. Therefore, according to the positivists, a rule properly made and accepted is a valid law irrespective of its moral content.

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Human rights derive their validity and status from society’s designation; it is up to society to decide whether or not to invent some set of laws with a higher authority. As such according to this school of thought, what sets human rights apart is nothing inherent in the rights themselves. It is how society’s law makers choose to define, categorize and regard those rights. Every society decides for itself what its fundamental values are.

The Decline of Positivism Positivism suffered a decline for three main reasons: firstly, the frequent wars led to a decline in standards and to growing insecurity. Secondly, the atrocities of the second world war shocked the entire world and thirdly, totalitarian regimes which passed abhorrent laws while strictly following the legislative procedures emerged in many parts of the world. This situation called for a moral order and the development of an ideological control. This led to the revival of the natural law theory. Propounded by Kent, the new natural law theory was based not on God but on what was reasonable.

3.) Human rights and constitutionalism Constitutionalism is adherence to a constitutional system of government. it is the idea of doing things according to the constitution. This is the idea often associated with the theories propounded by John Locke that government can and should be legally limited in its powers and that its authority or legitimacy depends on its observing the said limitations.

How then does constitutionalism relate to human rights? The basic idea is that human rights must be protected by government in order for people to enjoy them. The government should not infringe on the rights of individuals especially the civil and political rights because these rights are fundamental to the existence of individuals. The government should not restrict for example the right to assemble freely and the right for one to express himself or herself. These rights are the most abused in many societies by citizens on one hand and they are often restricted by the government through application of certain laws like the Public Order Act.

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SOURCES OF HUMAN RIGHTS Every law or branch of law has certain sources where such a law draws its authenticity. With regard to human rights, the sources are where the human rights are found. This part shall discuss the sources of human rights for purposes of validating or confirming their existence as it were. There are various sources of human rights. As with every other law, the sources are similar but the emphasis may differ. With regard to human rights, it is important to start the discussion on the sources with a brief explanation of their origin and hence thoughts about their existence. Firstly, human rights originate from nature. According to the natural law theory, human rights are God given and occur naturally in every human being. If you recall, the natural law theory was the first on the scene and advocated for no state intervention in what the state had not and was not capable of creating. This is why human rights are called inalienable entitlements because they cannot be taken away and neither can they be prescribed by any institution or person. Secondly, human rights according to the positivist theory are found in documents where they can be ascertained and understood. According to this theory, human rights cannot exist from without, they cannot be imagined, they must be written somewhere and to that end, positivists opine that human rights are given by the state in the documents that contain the rights. From this discussion, one can safely conclude that human rights as we understand them today are a combination of the two theories. This is because, human rights are still regarded as inalienable entitlements as espoused by the naturalists and they are also codified in various instruments as espoused by the positivists. The sources are as follows:

The Constitution The first source is the constitution. The Zambian constitution provides in Part III the bill of rights. In this part, there are civil and political rights guaranteed. This part of the constitution cannot be changed anyhow unless a referendum is held. The rights contained in here are justiciable meaning 6

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that a person can actually sue for infringement of any of the rights. See Christine Mulundika and 7 others v The People It should be noted that the bill of rights contains only civil and political rights. Economic, social and cultural rights are not yet guaranteed. They are relegated to progressive realization. The 2016 referendum was an attempt to include economic, social and cultural rights in the constitution. However, the said referendum failed to garner the 50% threshold required to pass it and therefore amend the bill of rights. As at now, only civil and political rights are guaranteed.

Acts of Parliament The second source of human are the Acts of Parliament. These are laws enacted by parliament. A number of Acts state human rights either directly or indirectly. Examples include the Marriage Act chapter 50 of the laws of Zambia which allows people of marriageable age to marry, the Matrimonial Causes Act 2007 which deals with divorce, maintenance, property and custody of children, the Gender Equity and Equality Act which deals with gender equality among other issues, the Lands Act which allows people who are eligible to buy and transact in land, the Environmental Management Act, 2013 which accords to every person a clean environment.

Customary Law The third source is customary law. Although customary law has often been harsh towards women, it is still a source of human rights to the extent that it gives certain entitlements to the people. It is also used to settle disputes which hinge on human rights. The case of Chibwe v Chibwe (2001) ZR 1 is instructive. This was a divorce case where a woman was denied equitable share of property at divorce. The court heard that under the Ushi custom, a woman was entitled to a reasonable share at divorce. Another case is Mwiya v Mwiya (1977) ZR 113 where a woman was denied property at divorce. The court heard that the Lozi custom did not allow a woman to get any property at divorce. Therefore, to the extent that it touches on human rights, customary law is also a source of human rights.

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Case Law The fourth source of human rights is case law. As is already known, judges make law as they interpret laws when a case is presented before them. In those judgements, judges pronounce on questions of human rights. The most litigated area of human rights is Part III of the constitution, the bill of rights. Cases like Resident Doctors Association v The A/G (2003) ZR was a complaint on the infringement of the right to freedom of expression and the right to assemble. Examples abound but one that can also be mentioned is the right to vote where the constitutional court recently passed a decision, interpreting a constitutional provision in the 2016 constitution. As it is prisoners are now allowed to vote. See Godfrey Malembeka v A/G & ECZ SJ 34 of 2017.

Writings of Acclaimed Jurists The fifth source of human rights is writings of acclaimed jurists. In the same way that human rights are stated in laws, human rights are discussed by various writers in their text books. Although these books do not necessarily command binding authority, they are nonetheless used authoritatively by courts and other scholars.

International Law The sixth source of human rights is international law. At international law, there are various international instruments in which human rights are stated. In Zambia, international instruments are not self-executing. They must be domesticated before the citizens can benefit from them. However, the commitment shown by government in signing and ratifying is enough testimony of the willingness to be bound. See Sarah Longwe v Intercontinental Hotels. These instruments are at global and regional level. Examples include the International Covenant on Civil and Political Rights (ICCPR, 1966), the African Charter on Human and Peoples Rights, 1981 a regional instrument.

Conclusion All in all, it can safely be concluded that human rights are God given entitlements and should not be taken away arbitrarily. Kindly note the use of the phrase ‘should not be taken away arbitrarily’. This, as explained earlier means that human rights even though inalienable are not absolute in 8

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execution. Human rights do not operate in a vacuum. And as espoused by many philosophers, for society to exist properly, people enter into a social contract with the state where they give up some of the rights in return for protection which is given by the state to everyone in society.

Categories of Human Rights Human rights are categorized in various ways for different reasons. Sometimes, reference is made to the sequence in which they were adopted, other times to the importance attached to them, other times to the beneficiaries of the said rights, sometimes to their features and resources needed to achieve them, other times to how much state intervention is needed to realize the said rights. In any case, human rights exist in basically three main categories or baskets or generations and have been accepted as such from the international scene down to the national systems. The three main categories are civil and political rights, economic, social and cultural rights and third generation or group rights.

Civil and Political Rights These are the first generation of human rights coined in articles 2 to 21 of the Universal Declaration of Human Rights (UDHR) 1948. These rights were later in 1966 enshrined in the International Covenant on Civil and Political Rights. This is a binding treaty on all states that are party to it. These rights are considered to be fundamental and crucial. To that end, it is expected that the government does not interfere with the enjoyment of these rights. They are also known as negative rights. The obligation of the state with regard to the enjoyment of these rights is considered to be absolute and immediate. These rights originated from the liberal West which promotes individualism. It has been said that these rights are cost-free in the sense that their enjoyment does not require from the state any expenditure, or may require only minimal expenditure. However, it is not exactly true that civil and political rights are cost free or that they require only minimal expenditure. On the contrary, they require a lot of intervention from the state in creating necessary institutions to facilitate the protection and enjoyment of the said rights.

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These are the second generation rights found in articles 22 to 27 of the UDHR. They are also contained in a binding treaty the International Covenant on Economic, Social and Cultural Rights of 1966. The purposes are to ensure social justice, freedom from want and participation in the social, economic and cultural aspects of life. These have been labeled positive rights in the sense that it is said that they demand active state participation to ensure their enjoyment. As such, they have been said to be costly rights because their realization demands a lot of resources from the state. As a result of this, these rights are often left to progressive realization depending on the availability of resources in a given state. These rights originated from the socialist East.

Group Rights These came on the scene later than the other two baskets. They are however found in article 28 of the UDHR. Examples include right to self-determination. In recent years, with the issues of climate change, environmental or green rights have also joined this group of rights. These rights are generally not regarded as urgent and therefore, they also fall under progressive realization on the part of the governments. They are called group rights because often it is groups of people that call for the recognition of the said rights. Take for instance the right to a clean environment, this is something everyone is entitled to.

The Nature of Human Rights It has been stated earlier as claimed by many scholars that human rights exist in three baskets or generations of human rights. The proposition is that each basket exists independent of the other two. However, in practice, this is not what happens. It is practically impossible to find one human right that exists independent of any other right. To this end, certain characteristics have been identified as forming the nature of human rights leading to their practical realization. Human rights are the fundamental rights of individuals in any given society. They are benefits deemed essential for individual and in some cases collective well-being, dignity and fulfilment of individuals. To a large extent, human rights reflect a common sense of justice, fairness and decency. In other words, it can be said that human rights define humanity.

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From the definition, it is now clear that human rights have two basic meanings. Firstly, they are moral rights derived from natural law. They are God-given or derived naturally from humanness of every human being and they are ascertainable by reason. This meaning is from the natural law theory. Secondly, human rights are juridical rights derived from man-made laws which are democratically established according to the community’s legislative processes. This meaning stems from the positivist theory. Deriving from the natural law theory, it can be argued that human rights have always existed and this is so since the time of creation of the human race. People are born with inalienable and immutable rights which exist independently and have been there before the emergence of the human society or the state. The state is therefore not capable of creating human rights by law or otherwise just like it cannot create human beings. The state can only recognize, protect and enforce human rights in favor of its citizens. The recognition of human rights signifies that the rights are affirmed, legitimized and justified as entitlements. Consequently, human rights are incorporated and established in the state’s system of values. From the above description, it is clear that human rights possess certain characteristics that make them stand out and be recognized as such.

Characteristics of Human Rights Firstly, human rights are universal and inherent. Human rights are inherent in every human being in every society. They exist everywhere human beings are found. Further, human rights are constant. Human rights do not vary in time and space and they do not differ depending on the status, race, gender or age of the claimant. They also do not differ according to political, ideological and economic system or a society’s level of development. In addition, human rights are free. Human rights are a gift of nature just like the air, rain, water, sun and vegetation and therefore available to anyone and everyone in the same measure. They are a natural and permanent quality of humanity. The inherent and universal nature of human rights as stated above does not however mean that human rights are recognized, protected and enforced to the same extent and in the same way all over the world. What is inherent and universal is the concept of human rights as worthy intrinsic human values; values that are good in themselves and are rooted in the universal consciousness of human kind; values that transcend the sovereign rights of states. Therefore, despite the 11

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universality, human rights are enforced differently and protected to different levels by states depending on the state’s ideals.

Secondly, human rights are inalienable, imprescriptible and fundamental This means that human rights are in-born, innate rights in people and cannot, at least in principle, be taken away from any individual by any means and for whatever reasons. However, as we will see later, this is the ideal situation and does not operate like this in practice. It also means that human rights cannot be transferred, forfeited, usurped or lost. They are claims as of right and not of appeal to grace, charity, brotherhood or love and as such enjoy presumptive inviolability. Human rights are not earned or deserved, instead they are always there whether a person talks about them or not. Human rights are fundamental and critical to human existence. They are however not absolute as in practice constitutions contain a number of derogation clauses. These clauses have been said to be claw back in the sense that on one hand a right is given while on the other hand it is taken away. This claw back is necessary in society for the better enjoyment of human rights. However, this does not mean that human rights should be sacrificed lightly. Individual rights may be sacrificed in some instances to promote the good of the nation as a whole. This must be strictly necessary otherwise it becomes an infringement. See Feliya Kachasu v A/G (1967) ZR 145.

Thirdly, human rights are inter-dependent, indivisible and equal This means that human rights are not in a hierarchy where some rights are more important than others. This view is contrary to the way human rights have been grouped into baskets or generations of rights which divide them according to importance and urgency of protection. Human rights must be conceived and perceived in a holistic manner. No one human right can exist independent of the others and no one right can be divided. Each person claims the whole as the other does. This idea was coined in the UDHR which contains all the rights in one document different from the treaties which separate the rights. Further, the unity, inter-dependency and indivisibility of human rights is reiterated in several United Nations General Assembly Resolutions which recognize the importance of human rights. 12

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Therefore, all human rights exist at the same time in equal measure and available to everyone irrespective of their status. For example, one cannot validly claim the right to life which is a civil and political right if such a person does not have food, access to clean water, health and clean environment as well as right to family life. And so all the rights must be equally protected in order for people to enjoy them to the full.

Fourthly, human rights are claims upon the state. This means that although human rights are inherent in every human being, their protection rests upon the state which provides the ways and means of ensuring the people enjoy their rights. This is done through enacting laws and creating systems to protect people and also to ensure the enjoyment of rights. States have bills of rights in constitutions which spell out the rights in absolute terms in the first part and provide derogation clauses in the second part. see Part III of the constitution. This is important because where a person’s rights end, the rights of another start. Coexistence is the theme for human rights enjoyment.

Beneficiaries of Human Rights Beneficiaries of human rights are human beings. The state is considered to be the provider of the rights through the actions to protect and defend them on behalf of the people. There is vertical and horizontal application of human rights. Under the vertical application, people claim their rights from the state through established means. It is under this that people sue the state to claim infringement of rights mainly civil and political rights as these are enshrined in the national constitutions and are therefore justiciable. See Christine Mulundika and 7 others v The People (1995-1997) ZR 20. The horizontal system is the application of human rights between and among individuals. An individual can claim in a court of law their right to something against another individual; for example, where there is breach of contract. In this way, the primary correlative duty concerning human rights falls on the state and its public authorities and not on individuals. It is the responsibility of the state to enact laws and create systems to enforce the said laws. From the above discussion, we can decipher three important issues that pertain to human rights. Firstly, that the principle of non-discrimination is central to human rights law. As human rights 13

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are inalienable and equal, no one should be treated differently from the others. Therefore, the state is expected to create systems that promote non-discrimination among the people. Secondly, the rule of law is a fundamental principle of human rights law. Within the state, human rights must be recognized, protected and enforced by law. Thirdly, the state must provide effective remedies for human rights violations irrespective of who has committed the violation. This ensures equality, non-discrimination and the rule of law not rule of men.

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TOPIC 2 International Human Rights Systems. Under this topic, we focus on the internationalization of human rights. That is to say, how did human rights start and how did they get recognition at international level. How practical are human rights at international level in the current system. We will basically focus on the United Nations and its human rights systems. Contemporary human rights began developing after the second world war when the world experienced the most atrocious and inhuman and cruel treatment of people. The desire to safeguard and protect human rights was a direct response to the abominable cruelties and horrors of the 2nd World War. The desire stemmed from the realization that the denial of human rights was a major cause of injustice and wars around the world. After the atrocities of the 2nd WW, nations and people at large came to the realization that some of the violations could have been prevented had there been an effective international system for the protection of human rights. The full realization and publicisation of war time atrocities brought human rights into the full focus and irreversible mainstream of the international political system and into international law. Human rights were brought into sharp focus for the world to converge on agreed principles to prevent future violations. As such, human rights were written into the charter of the United Nations paving the way for the adoption of human rights instruments of wider and general import and more specific ones dealing with narrower topics in great detail. This therefore brought to the fore the birth of the international or universal human rights system comprising human rights norms generated by the United Nations organs or agencies and enshrined in various human rights instruments. In addition, there was a variety of established mechanisms for implementing the said human rights. From the time of the UDHR, which is a declaration with no binding legal effect, a number of legally binding international human rights instruments have over the years been adopted. Even though not a binding treaty, the UDHR is an important document and step in the protection of human rights.

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At international level, human rights are contained in several treaties. However, four instruments form the international bill of rights. These are: ➢ The UN Charter, ➢ the Universal Declaration of Human Rights (UDHR, 1948), ➢ The International Covenant on Civil and Political Rights (ICCPR, 1966) together with the two optional protocols, ➢ The International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966).

The UN Charter The preamble recalls the determination of the ‘the people of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’. This preamble provision was the first affirmation of equality between men and women. It also points to the equality of all nations and thereby emphasizing state sovereignty. Despite this, the Charter recognizes and establishes that relations between a state and its own people are a matter of international concern and no longer within the domestic jurisdiction alone. This is important in the sense that a state cannot use its state sovereignty to abuse the human rights of its people without the international community getting concerned. The UN Charter makes the promotion of human rights a purpose of the UN. See article 1(3). The responsibility for achieving this purpose rests with the General Assembly which has authority to make recommendations for the purpose of assisting in the realization of human rights. See article 13. Article 62 gives responsibility for human rights to the Economic Social Council (ECOSOC). The ECOSOC is able to make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all. It may also draft conventions for voluntary adherence. It can also establish a commission for the promotion of human rights. As we can all notice from the above, the system is a voluntary one calling upon states to voluntarily agree to respect human rights. This is one of the challenges with the implementation of international law as it only binds states that agree to be bound by the provisions of the particular treaty. 16

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Article 55 provides for respect for the principle of equal rights and self-determination of peoples. The article basically itemizes group and economic, social and cultural rights such as higher standards of living, full employment among others. An important issue in this provision is the principle of non-discrimination. Under article 56, all members of the UN pledge to take joint and separate action to achieve what is set out in article 55. By these obligations, a human rights code is created which gives meaning to the term human rights and fundamental freedoms. A number of agencies have also been created to implement the rights This the first comprehensive human rights instrument to be adopted with the UN General Assembly proclaiming it as a common standard of achievement for all peoples and all nations. The declaration was impressive evidence of the consensus on and commitment to human rights on the part of the nations of the world.

The Universal Declaration of Human Rights Although not a binding treaty, the UDHR represents the basic international statement of the inalienable and inviolable rights of all members of the human family irrespective of nationality, race, gender or religion. This is the principle of non-discrimination. The declaration contains the three baskets of human rights; it proclaims the civil and political rights, it guarantees a number of economic, social and cultural rights and it recognizes the entitlement of everyone to a social and international order in which proclaimed human rights can be fully realized. The UDHR underscores the fact that each person has duties to the community in which he or she lives. Therefore, to every right there is a corresponding duty to be performed by the people. Although the declaration is not a legally binding treaty, the world community accords it reverence equal to a legally binding treaty.

The International Convention on Civil and Political Rights, 1966 This is a legally binding treaty which guarantees civil and political rights. It defines and circumscribes a variety of rights and freedoms. In addition, it imposes an absolute and immediate 17

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obligation on each state party to respect and ensure the rights stated in the document to all individuals within its territory. The ICCPR also calls upon states to adopt legislative or other measures to ensure the realization of the rights. The Human Rights Committee is the implementing body under the ICCPR. It investigates violations and reviews periodic state reports etc.

Two Optional Protocols The ICCPR has two optional protocols to it. This means that a state can be party to the convention but not to the protocols. The first optional protocol allows individuals who claim to be victims of violations of the covenant to file individual communications with the HRC. The complaints are only valid against states party to the protocol. The second optional protocol is about the abolition of the death penalty. A good number of countries are party to the first optional protocol but not to the second.

The International Covenant on Economic, Social and Cultural Rights, 1966 This is a legally binding treaty which lists and expands economic, social and cultural rights as listed in the UDHR. Its effectiveness depends on the obligations undertaken by governments to implement its provisions within nations. This is done through progressive realization depending on the nation’s resources. It is said that implementation of ESC rights requires financial commitment by the state. A state is also obliged to adopt legislative measures to ensure the realization of these rights. Other measures include administrative, policy, social, educational, judicial among measures. The treaty body under the covenant is the Committee on Economic, Social and Cultural Rights which monitors the implementation of these rights. UN bodies and specialized agencies with reporting obligations under the covenant include the UNFPA dealing with gender equality, family protection etc. ILO dealing with the right to work, right to just and favorable conditions of service etc. Others are UNICEF which deals with special measure of protection for children; FAO dealing with the right to adequate standard of living; WHO dealing with right to health and UNESCO dealing with the right to education. 18

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Other Major Human Rights Instruments Apart from the international bill of rights as seen above, the UN legislative activity in the area of human rights has over the years generated and continues to generate important human rights instruments on different subjects as the need arises. We will discuss in this part a number of other UN instruments to understand their full import and how over the years, state parties have embraced the provisions therein. The idea is to appreciate how the international human rights system has evolved and what if at all, individual nations like Zambia can learn from them.

The Convention on the Rights of the Child, 1989 This convention provides the most comprehensive legal and policy framework for the protection of children and respect for their human rights. It contains in an elaborate way a whole catalogue of civil, political, economic, social and cultural rights. These rights are already protected in other international human rights instruments. However, in the CRC, special emphasis is made with regard to the protection of children and their human rights. The CRC enshrines four general principles with regard to the protection of children’s rights. These are: •

non-discrimination,

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best interest of the child,

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the right to life, survival and

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development and respect for the views of the child.

These principles are meant to achieve certain goals with regard to the protection and respect for children’s rights. For example, the best interest of the child means that whenever a discussion relating to a child arises, focus should be on what is best for the child in question and not what other people would prefer. In a custody application for example, that one of the parents has more money than the other does not necessarily mean that he/she is the best parent to keep the child. And so only that which promotes the welfare of the child rules. The general principles have to that end embedded in them aspects that directly relate to the protection of children’s rights. 19

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Firstly, the principles confer substantive rights in themselves. Secondly, the principles help with the interpretation of the Convention as a whole; and Thirdly, the principles are meant to guide national programs of implementation of the rights of children. Therefore, looking at the principles, it can safely be concluded that the CRC has adopted a holistic view in the protection of children’s rights. As noted earlier, the ideas for the protection and respect for human rights was a reactive move. This is to say, it was not initially part of the plan, but the world community had to take action as the need arose. There was a direct reaction to the atrocities and rampant abuses that characterized the second world war. In guaranteeing the rights of the child, the CRC lists the rights providing examples of situations in which the said rights can arise. This is for the avoidance of doubt. It lists civil and political rights such as the right to life, the right to a name, access to appropriate information among others. It further lists matters pertaining to family environment such as family reunification, protection from abuse, right to basic health care, protection from drug abuse, sale and trafficking and abduction among others. The family is believed to be a safe haven for children and for everyone really. And so with emphasis on children, the family environment is specifically highlighted. During the war, children were separated from their families causing disruption to their normal lives. They were also victims of numerous abuses. And so responding to that violence, the CRC guarantees the rights of the child in a systematic and focused manner. The treaty body under this convention called the Committee on the Rights of the Child monitors the implementation of the CRC. States party to the CRC have an obligation to respect and ensure the implementation of the rights set forth in the treaty. They must also take appropriate legislative and other measures for the implementation of the said rights. With regard to economic, social and cultural rights, states party must undertake such measures to the maximum extent of their available resources and where needed within the framework of international cooperation. This basically means states must endeavor to progressively realize the ESC rights for the children within their resources and if need be, states can seek international help through aid or other support, technical or otherwise. States party are obliged to submit periodic reports to the Committee on the measures they adopt which give effect to the rights recognized in the CRC. They are also obliged to report on the progress made in the enjoyment of the rights. 20

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In its work, the committee has emphasized the importance of constructive dialogue with representatives of governments. There is also close cooperation with UN specialized agencies. In this way, the committee is able to transmit requests for assistance to appropriate agencies once made by the states. For example, a request for assistance in relation to health will be channeled to the WHO, while a request for assistance in the area of education will be channeled to UNESCO etc. The specialized agencies play a pivotal role in that they can also be invited to provide expert advice on matters within their respective competence. They may also be invited to submit reports on the implementation of the CRC.

Convention Against Torture (CAT) The full name for this convention is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This convention outlaws any cruel treatment of any person by another or state institution. It requires states party to outlaw torture in their national legislation and in practice. It specifically provides that no exceptional circumstances or superior orders can be used to justify torture or inhuman treatment of a person. To that end, the CAT has attained the status of customary international law to which no derogations are allowed. A person who engages in torture can be prosecuted wherever that person is found in the jurisdiction of a state party. The convention provides for an international inquiry if there is reliable information indicating that torture is being systematically practiced in the territory of a state party. States party pledge to take effective legislative and other measures to prevent acts of torture in any territory under their jurisdiction. They further agree to afford each other assistance with criminal proceedings with regard to acts of torture. States agree to ensure that education and information regarding the prohibition of torture are fully included in the training of law enforcement officers, civil or military, medical personnel, public officers and other persons who may be involved in the criminal process. States also pledge to ensure that victims of torture obtain redress and have an enforceable right to fair and adequate compensation including full rehabilitation as much as possible. The treaty monitoring body under this convention is the Committee against Torture. The main function of the committee is to ensure that the convention is observed and implemented. States have an obligation to submit periodic reports to the Committee on the measures taken to give effect 21

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to their undertakings under the convention. The committee is empowered to examine inter-state communications and individual complaints relating to torture. As torture is completely outlawed, no state is allowed to make reservations to the convention upon signature and ratification.

The Int’l Convention on the Elimination of all forms of Racial Discrimination. (ICERD) This convention prohibits racial discrimination both in law and in fact. State parties pledge to among other things not to engage in acts or practice of racial discrimination against individuals, groups of persons or institutions and to ensure that public authorities and institutions do likewise. The treaty monitoring body under this convention is the Committee on the Elimination of Racial Discrimination. It receives and acts on periodic reports from states, inter-state communications and individual complaints. Racism affected the world in a material particular and in some cases led to extreme violence.

Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW) For a long time, women’s rights had been relegated to the bench. And so realizing the importance of these rights and following sustained campaigns by the women movement, this convention was adopted way back in 1979. It provides additional means of protection for the human rights of women, particularly the political rights, marriage and the family and employment. In these areas women were not treated as equals with men. The convention calls upon states to recognize the important economic and social contribution of women to the family and to society as a whole. It enjoins states party to take all appropriate measures to ensure women equality with men in all aspects and spheres of life; equality in political and public life at the national and international levels; equality in education, in employment among others. By signing and ratifying the convention, states party undertake to condemn discrimination against women in all its forms and to eliminate gender discrimination. To that end, states must undertake legislative, administrative,

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policy as well as other measures to eliminate discrimination against women in all its forms and from whatever sector. States are mandated to take necessary steps to enact laws, modify or abolish laws that are discriminatory to women and to modify discriminatory customs, customary practices and patterns that promote discrimination against women. The treaty body called the Committee on the Elimination of Discrimination against Women receives periodic reports from states on legislative, judicial and other measures undertaken in accordance with the provisions of the convention. This convention is also known as the women’s convention or the international bill of rights for women because of its detailed provisions of women’s rights.

Declarations These are part of the law making function of the UN. They do not have legal binding effect but they have a superior moral force and provide practical guidance to states in their conduct. A few examples are cited below. ➢ Universal Declaration on Human Rights, 1948 which lists all the civil and political rights, economic, social and cultural rights as well as groups rights in a very authoritative manner. ➢ Declaration on the Right to Development, 1986 which asserts the right to development as an inalienable, universal right of all people.

International Conferences These form an important aspect of standard setting at international level. It is through these conferences that lobbying and introduction of various issues including human rights is done. Many action groups lobby governments for recognition of their plight. A few examples follow below. ➢ World Conference on Education For All, Jomtien, Thailand, 1990 ➢ United Nations Conference on Environment and Development, Rio de Jenairo, 1992 ➢ World Summit for Social Development, Beijing, 1995 The decisions from these conferences are usually resolutions and recommendations called ‘Plans of Action’.

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UN Human Rights Implementing Mechanisms. Generally speaking, all UN organs and agencies deal with human rights issues, each within its own mandate and sphere of activity. Some of the organs and agencies are involved in generating human rights norms, while others are involved in the implementation and monitoring and others are involved in field actions.

The General Assembly The General Assembly is the main deliberative organ of the UN. one of its functions is to initiate studies and make recommendations for assisting in the realization of human rights for all. It is the law making organ of the UN. It adopts recommendations, resolutions or declarations. It also opens conventions and treaties for signature and ratification. The General Assembly holds its discussions in plenary involving heads of state and government or other representatives. Most of the human rights issues are dealt with by the Third Committee which deals with social, humanitarian, cultural and human rights issues.

Security Council This deals with the maintenance of international peace and security. It is empowered to take action under chapter VI for pacific settlement of disputes, chapter VII for collective enforcement and chapter VIII for regional arrangements. Under chapter VII, the security council has power to decide whether a certain conflict constitutes a threat to or a breach of international peace and security or an act of aggression. Under this mandate, the security council has in the past created ad hoc tribunals to deal with atrocities that occurred in certain parts of the world like Yugoslavia, Sierra Leone, Rwanda etc.

The Secretariat The secretariat promotes international human rights through its two focal points. These are the High Commissioner/Centre for Human Rights with its location in Geneva and the Crime 24

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Prevention and Criminal Justice Branch located in Vienna. The Centre for Human Rights is the most important entity on human rights within secretariat. The High Commissioner for Human Rights is responsible for human rights activities. This is under the direction of the secretary general and within the framework of the overall competence, authority and decisions of the general assembly, ECOSOC and the commission on human rights.

Human Rights Machinery the UN has treaty based and charter based human rights implementing mechanisms. Through the authority of ECOSOC, there are two procedures adopted, these being the public and confidential procedures. These were introduced by resolution 1235 and 1503 respectively. Procedure 1503 is used to investigate allegations concerning situations which appear to reveal a consistent pattern of gross and reliably attested violation of human rights. Procedure 1503 cannot be used to investigate specific individual cases of human rights violations. 1503 procedures are made on countries who are alleged to be engaged in violations of human rights in a consistent manner. Once information has been gathered, the countries involved are informed and allowed to comment on the matter. The 1235 public procedure is used to examine information relevant to gross violations of human rights and fundamental freedoms. This is done through making thorough studies of situations which reveal a consistent pattern of violations of human rights with a view to reporting and making recommendations to the ECOSOC. Two approaches are adopted under this procedure; one focusing on country-situations and the other on thematic studies.

Treaty Based Procedures It is a fundamental principle of international law that every treaty in force is legally binding upon the parties to it. This means that the parties are bound to follow and comply with the obligations contained in the treaty. Some of the obligations imposed by human rights treaties are general while others are particular calling upon parties to observe specific matters of human rights. The general obligations consist of an obligation to perform the treaty in good faith, an obligation to give effect to the treaty rights and an obligation to submit periodic reports on measures taken to implement the treaty. 25

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The reporting is based on two assumptions that every state is a potential violator of human rights and that international accountability is in the best interest of the state itself, its citizens as well as the international community. The obligation to give effect to the treaty entails the following: first, a duty to recognize the rights enshrined in the treaty, second a duty to adopt legislative and other measures to give effect to the treaty rights, third a duty to promote human rights and fourth a duty to ensure the respect of human rights. With regard to respect, human rights treaties provide that states undertake to respect and ensure human rights to all individuals within the territory and subject to its jurisdiction. The state undertakes international obligations not to violate human rights and ensure all individuals in its territory enjoy their human rights. Breach of the treaty can occur either through commission or omission; whichever way, the state must desist from acts that will breach the treaty. Any breach attracts the international community as well as the domestic jurisdiction if the treaty is domesticated. States must also ensure that human rights are not violated by private individuals. Human rights treaties make a distinction between civil and political rights and those of economic, social and cultural rights with regard to state obligations. With regard to economic, social and cultural rights, a state is obliged to undertake steps to the maximum of its available resources with a view to progressively achieve the full realization of the human rights contained in the treaty concerned. A state must also protect the rights which have become part of customary international law. The monitoring under each treaty is done by the respective treaty body called a Committee. They make general recommendations as well as clarify certain core provisions in treaties. Refer to works of various committees. In addition to the treaty bodies, there are also reporting mechanisms to ensure state compliance with the treaty provisions. Where there has been breach of a treaty, an aggrieved state party can withdraw from the treaty and if its multilateral treaty, the state concerned can be sanctioned. Under this, there are state periodic reports which states submit. NGOs are allowed to appear and ask questions about the state’s compliance. There is also the inter-state complaint procedure where a state can complain against another state violating provisions of the treaty.

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TOPIC 3 Regional Human Rights Introduction Regional human rights are important in contemporary human rights development as they play a key complementary role in enhancing or reinforcing international human rights standards and implementation machinery. Regional human rights provide a mechanism by which human rights concerns can be addressed within particular or specific social, economic, historical and political context of the specific regions. The regional environment determines the kinds of violations that are likely to be committed and therefore the nature of the work to be done by the regional institutions. Regional systems are relied upon by the universal system with regard to implementation of human rights.

Costly Proliferation? Proliferation means rapid increase in the number or amount of something. A whole range of human rights both individual and group rights are already contained and guaranteed in a number of international human rights instruments. As we have seen in the international human rights systems, there are various human rights implementing mechanisms aimed at making human rights instruments effective, even if in a small way. Therefore, it has been said that having another human rights system alongside the universal system could be said to be saddling states with more onerous and costly obligations. Despite this, regional systems have been found to be necessary.

The Influence of Culture Culture plays a key role in every society. Cultural relativism means that social values and moral codes indicate a wide range of cultural diversity that should be beyond the criticism of outsiders. This means that different regions have certain issues that they know and understand and it is wrong for an outsider to criticize what they don’t know. It is felt that any viable human rights system must take into account such diversity in order to fully work and serve the people. The philosophy of cultural relativism entails that there exist cultural variations in human societies. This means that 28

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different societies and cultures have historically developed certain attitudes to the notion of human dignity and worth. Proponents of this philosophy argue that it is not that human rights do not exist in all societies, they do but over time various societies have developed different attitudes in their approach to human rights; the question of human integrity, dignity and worth. This kind of expression and thinking has over the years defined human rights differently for different categories of people. The most negatively affected by such thinking have been women where their human rights have been denied on account of how society perceives the situation at hand. It is important to have human rights looked from a holistic point. Cultural variations influence people’s ideas of and attitudes towards human rights. Proponents of this philosophy state that human rights as sponsored by the West are not necessarily applicable to other cultures since they were created on different basis. Cultural diversity is indeed one of the justifications for the existence of regional human rights systems. It is argued that human rights are understood better at regional level because it becomes clear what kind of violations are likely to occur and how such violations can be handled. It is said that regional human rights systems provide the means by which human rights concerns can be addressed within the particular social, economic, historical and political context of the region. This context may not be similar to any other region. Therefore, the regional environment determines the kinds of violations that are likely to be committed and hence nature of the work to be done by the regional human rights systems. In a way, regions seem to suggest that what happens in their specific regions is not necessarily applicable to other areas and hence the need for regional human rights systems. In addition, regional systems are relatively easier to access in terms of transport and communication especially for individuals when compared to international systems. Also, they increase participation by states in human rights issues, where a government may be more willing to sign up to a regional instrument than to an international treaty. There is also a feeling that a government may be understood sympathetically by fellow governments. Also the operating environment is the same or similar and so problems can be resolved more easily.

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There is a presumed high level of compliance to human rights standards within regional systems because of the belief that the states are operating within systems they understand better. Where the region is characterized by common cultural values and beliefs, the regional arrangements may provide additional assurance that a government’s problems will be understood better and in an environment where its officials can operate without problems. Regional systems develop regionally relevant methodologies and regionally appropriate mechanisms which respect the sovereignty and cultural differences of the states and as such is more suited to deal with the problems in the region including practices which may be offensive or wide spread or deep rooted. The sympathetic attitude towards human rights may be problematic in the sense that it can promote human rights abuses within states because as brothers they may refrain from condemning each other and in a way punish the citizens. This must be managed properly. The inter-elite solidarity should not be allowed to undermine the effectiveness of human rights instruments. The comrade attitude should not be allowed to hamper the functioning of the human rights instruments/mechanisms. It is also important to ensure that the regional groupings do not press for the lowering of international standards on account of cultural relativism or other inclination.

Nature and Range of Instruments There are three main regional systems existing, all established by and under regional political organizations in the same way that the international system was created by and under the global political organization, the UN. Regional systems are not dependent on the universal system although they could learn one or two things from it. They are for example not regarded as the first step or courts of first instance before a person can seek help from the international system. The systems are self-contained and function independently of each other and the international system. In terms of nature of instruments, these can be declarations, treaties or protocols as the case may be. Declarations usually end up in binding treaties. This tactic has been used to get states to buy into the idea before the instrument becomes legally binding. Africa, America and Europe have adopted their respective treaties. Beyond this, the treaties have been expanded through adoption of protocols etc. The American convention and the European Convention both contain civil and political rights while the African Charter contains all the three categories of human rights.

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The actual content of human rights in the various treaties reflects the respective states’ willingness to implement the said rights. The American convention contained only civil and political rights but a protocol was later adopted which listed a few economic, social and cultural rights. The European Convention has equally expanded through protocols. The African Charter has also been expanded through protocols.

Regions Without Systems The world is divided into five regional groupings. Africa, America and Europe have developed and functioning regional human rights systems. The Asian and Pacific region as well as the Arab region have remained without regional human rights systems. With regard to the Asian and Pacific region, regional cooperation is promoted through workshops by the office of the High Commissioner for Human Rights. In 1998, a meeting held in Teheran made several conclusions out of which arose the four priority areas for cooperation in this region. The four priority areas are ✓ national human rights plans of action; ✓ human rights education; ✓ national human rights institutions and strategies for the realization of the right to development and economic, ✓ social and cultural rights. Under these areas, efforts are made to ensure that states observe and implement human rights at national level through establishing human rights institutions and conducting human rights education. In the Arab region, more and more governments are becoming active in human rights issues and show commitment to establishing national institutions and ministerial bodies to protect human rights.

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The African Human Rights System Background The African human rights system was the last to be created among the three regional systems existing in the world, the first having been the European system followed by the American system. The African Charter on Human and Peoples Rights was adopted in 1981, it entered into force in 1986 and became operational in 1987 at the same time as its implementing mechanism, the African Commission. Before the Charter, most African states were already party to the international covenants on human rights and as such were already committed to implementing human rights. In addition, several states had, following their international commitments, entrenched human rights in their constitutions in the bills of rights. Despite the international commitments, the regional system was still desired and was eventually born. The African charter states that the African system of human rights was inspired and characterized by the virtues of its historical traditions and the values of African civilization. This did not mean a repudiation of the universal system because even as African values and civilization were taken into account, adherence to international human rights instruments was reaffirmed. The idea of setting up an African human rights system dates back to the African conference on the rule of law held in Lagos in 1961, whereat African countries were called upon by the International Commission of Jurists (ICJ) to study the possibility of adopting a regional human rights treaty. After a series of meetings relating to this idea, the Charter was finally adopted in 1981 in Banjul, the Gambia. This is why the African Charter is also referred to as the Banjul Charter. All the 53 African states have ratified the Charter. The charter neither allows nor prohibits reservations to its provisions. Under the defunct OAU, the system was deemed to be blind, deaf and dumb to atrocious human rights abuses that were perpetrated by member states involving their own citizens. The OAU hid behind the old concepts of state sovereignty and non-intervention and looked the other way as the people suffered. One party states which were the order of the day tortured, maimed, killed, detained and imprisoned people at will and were not questioned. In 1979, African states many of whom 32

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were not democratically elected, took a stance and decided to put in place a human rights system for the region. There are a number of reasons to explain the sudden change by the leaders and these were mainly political expediency for the states involved. The USA under President Jimmy Carter’s administration gave unprecedented prominence to human rights rhetoric in its foreign policy where it linked US aid to a recipient nation’s human rights record. With questionable human rights records, US aid was not available and so a number of states had to tune their systems to embrace human rights. The African leadership was anxious to get international legitimacy and salvage its bad image following international perception of the Amin-Bokassa-Nguema-type atrocities and abominations as typical rather than atypical of the African leadership. In the eyes of the international community, every African leader was a potential or an actual Amin/Bokassa/Nguema. Therefore, some image cleaning was urgently needed. Acceptance of an African human rights system was therefore an exercise in damage control. There was a contradiction in the OAU’s condemnation of human rights abuses by white minority governments in Southern Africa and its loud silence in the face of gross human rights abuses in the rest of Africa. The OAU was perceived to be hypocritical and practicing double standards. This created a problem of credibility for the organizations, devalued and compromised its campaign, albeit legitimate against colonialism, apartheid, racial discrimination and exploitation in Africa. With all the damage caused by the double standards, there was an urgent need to come out clean. Therefore, governments decided to embrace the idea of adopting an African human rights system thus opening themselves up to international scrutiny. Whatever the reasons could have been at the end of the day, adoption of the continent’s human rights system was a relief as it gave hope that at last gross human rights violations would come to an end or at least be checked and controlled.

The Normative Edifice Normative edifice refers to the structure which holds something together. In this case, we refer to the legal structure that holds the African human rights system. In this sense, we are referring to the important provisions which inform the content of this regional system.

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Five basic instruments form the normative edifice for the African human rights system. These are some pertinent provisions of the AU Constitutive Act that relate to human rights; ✓ the African Refugee Convention; ✓ the African Charter on the Rights and the Welfare of the child; ✓ the African Charter on Human and Peoples Rights, together with the protocol thereto on the establishment of the African Human Rights Court; and ✓ the Protocol to the African Charter on the Rights of Women. these are explained below.

The Constitutive Act of the African Union In its preamble, the AU treaty expresses the determination of the African leaders ‘to promote and protect human and people’s rights, consolidate democratic institutions and culture, to ensure good governance and the rule of law’. One of the objectives of the African Union is to ‘promote and protect human and people’s rights in accordance with the African Charter on Human and Peoples’ Rights and the other relevant human rights instruments’. Article 3 In its work, the African Union follows certain principles including promotion of gender equality; respect for democratic principles, human rights, the rule of law and good governance; respect for the sanctity of life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities; condemnation and rejection of unconstitutional changes of government.

The African Refugee Convention This convention was adopted in 1969 and focuses on specific aspects of refugee problems in Africa such as asylum and voluntary repatriation. A refugee is defined in here as a person who is unwilling to return to his/her country due to a well-founded fear of persecution for reasons of religion, nationality, political opinion and one who is compelled to leave the country on account of external aggression, occupation, foreign domination or events such as civil wars, ethnic cleansing, genocide, natural disasters among other reasons. States agree that the grant of asylum is a peaceful and humanitarian act. The convention enshrines the principle of non-refoulement and voluntary repatriation. A distinction is made between a 34

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refugee seeking a peaceful and normal life and one who flees for purposes of fomenting subversion from outside his country of origin.

The African Charter on the Rights and Welfare of the Child This treaty was adopted in 1990 focusing on the rights of children. It defines a child as a person below the age of 18 years. It recognizes a wide range of rights relating to children such as the right to life, the right to a name and a nationality, the right to education, the right to privacy, the right to recreation and the right to the best attainable state of physical, mental and spiritual health, the right to freedom from torture, abuse and sexual exploitation, discrimination, child labor and harmful social and cultural practices. The overriding principle is ‘the best interest of the child’. States are called upon to ensure that children do not take part in hostilities. By article 31, children have duties such as respect for the parents etc.

The Protocol to the African Charter on the Rights of Women in Africa The states party have recognized that despite commitments made, women are still denied their human rights in many ways. They therefore undertake to ensure that any practice that hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be eliminated. Some of the rights covered in the protocol are the right to information and legal aid; respect for the dignity of women; marriage, divorce and annulment of marriage; right to peace; right to adequate housing; right to economic and social welfare; right to reproductive health; special protection for elderly women and women with disability; right to food security, right to live in a positive cultural context.

The African Charter on Human and People’s Rights This is the main instrument of the African human rights system consisting of 68 articles arranged in three parts. The first part comprises the substantive provisions of the human and people’s rights, the duties of the state and the individual. The second part provides for the enforcement mechanism of the charter through the commission. It states its mandate, the procedure for submitting communications and the applicable principles. The last part deals with other matters. The Charter

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provides individual rights in articles 2 to 17. In addition, the Charter imposes duties on states and individuals to ensure the attainment of the rights contained in the Charter. In terms of rights, the Charter provides civil and political rights, economic, social and cultural rights as well as group rights. Examples include freedom from discrimination, right to a fair trial, freedom of association, right to equality with other people, right to existence. In terms of duties, states have a duty to recognize the rights and duties enshrined in the Charter, adopt legislative and other measures to give effect to the rights in the Charter, duty to assist families etc. The individual has a duty towards other people, the family, the state, to Africa and the international community. In all these duties, an individual is called upon to observe unity and co-existence In its wording, the Charter has stated the rights and duties quite broadly. Further, the rights have claw back provisions, where limitation clauses to the rights are allowed and widely provided. Examples of claw back provisions include ‘except for reasons provided by law, subject to law and order etc. These are capable of being interpreted widely as to take away the actual right given. These claw back provisions have the effect of justifying state limitation of individual rights especially when states claim certain matters to be within their respective domestic jurisdictions. The Charter is unique for many reasons. First, it contains all the three generations of rights, Second, it emphasizes duties of individuals towards others Third it combines African values with international norms, Fourth, its title incorporates the fact of people’s rights, Fifth it imposes absolute and immediate obligations on states party to take action to ensure the realization of the rights contained in the Charter, Sixth, the Charter guarantees ‘all peoples’ the right to their economic, social and cultural development. The right to development was recognized by the OAU in 1993 when it was defined as an inalienable human right by virtue of which every human being is entitled to participate in, contribute to and enjoy the economic, social, cultural and political development of society.

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Implementing Bodies Implementing bodies under each treaty are a way of ensuring compliance with the provisions of the treaty by the parties thereto. There are about five international techniques used in making human rights instruments effective even at a minimum. These are; ➢ state reporting, ➢ monitoring, ➢ inter-state complaints, ➢ non-state complaints and ➢ adjudication which results in binding decisions between the parties to a case. There are two implementing mechanisms under the African human rights systems; these being the African Commission and the African Court of Human Rights. The Commission and the Court are complementary implementing institutions of the African human rights system. The commission uses the first four stated mechanisms while the court uses the last one. In this way, a person is presumably able to attain justice before either of the bodies. The Commission was created earlier while the court came in much later to ensure that binding decisions are passed on matters that come before it. The creation of the court was to mitigate the non-binding nature of recommendations by the commission.

The African Commission on Human and Peoples’ Rights Establishment The commission is composed of eleven persons of high integrity who are chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights. These eleven individuals are elected by the AU Assembly of Heads of State and Government and serve in a part time capacity for a period of six years and may be re-elected. Although not explicitly stated, matters relating to gender balance, regional representation and legal tradition in the membership of the commission are taken into account during elections of members. The Commission is based in the Gambia. It does not operate on a full time basis. During its work, it is heavily assisted by its secretariat which does the bulk of the administrative and secretarial work. It meets twice a year for about three weeks each session. Outside this, it works through

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committees, working groups and sub-commission/committees of experts. NGOs granted observer status are allowed to participate in the public sessions but they cannot vote.

Mandate The commission has five distinct functions vested in it by the Charter namely; ➢ to promote human rights, ➢ to protect human rights, ➢ to examine periodic state reports, ➢ to interpret all the provisions of the Charter and ➢ to perform any other tasks as entrusted by the AU Assembly of Heads of State and Government. These other tasks can include gathering materials, conducting studies, encouraging human rights groups, providing governments with advice and recommendations on human rights issues. The commission has established working groups and also appoints special rapporteurs on different questions such prison conditions etc. In carrying out its protective mandate, the commission is empowered to consider inter-state communications, to examine complaints filed by individuals and NGOs and to conduct on site investigations. All complaints must be against a state party for them to be registered and considered by the commission. The commission also has to satisfy itself that the complaint is properly before it and enough information is availed by the complainant. Before a complaint can be admitted, it must first be received through laid down procedure of assessment (receivable). It should not be frivolous, it should not be vexatious and the relief sought should not be outrageous among other considerations. Once received, the complaint goes through the process of admissibility using seven admissibility requirements stated in article 56 of the charter. The complaint must include the author’s name, be compatible with the Constitutive Act or the Charter itself, written in sober language without insult, should not be based exclusively on news or media reports, the complainant must have exhausted all local remedies before going to the commission, the complaint should be submitted within a reasonable time of the exhaustion of local remedies, the complaint should not deal with matters

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already settled by states involved. Exhaustion of local remedies is important because of the belief that each state is competent to resolve its problems unless otherwise. Where local remedies prove ineffective or unavailable, a complaint may be admitted even if the local remedies have not been exhausted. After the admissibility stage, the complaint moves to the last stage i.e. the merits stage. Here the complaint is now heard on its merits and recommendations made by the commission. Provisional measures can be issued by the commission but these are not binding on the states and have often been ignored leading to irreparable damage. An example is the execution of Ken Saro Wiwa before the case was heard by the commission. The finding of the commission at the end was moot as Nigeria had already acted and could not be punished. The biggest challenge as with other international systems is the lack of power to enforce the decisions of the commission especially that the naming and shaming scheme has not be effective.

Interaction between the Commission and the AU Interaction between the Commission and the AU happens in many ways: •

The Commission is a creature of the AU and one of its organs. Its commissioners are elected by the AU after recommendation by the states.

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The AU appoints the staff for the Commission secretariat.

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The Commission is financed in part by the AU.

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The AU sanctions certain actions of the Commission.

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The Commission forwards all its reports to the AU for action.

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The AU Assembly of states and Governments can entrust the Commission with performance of certain tasks.

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The AU is entrusted with the task of enforcing the recommendations and resolutions of the Commission.

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The African Court on Human and People’s Rights The protocol establishing the court was adopted in 1998 in Ouagadougou Burkina Faso and received more than the required number of instruments of ratification by 2004. In terms of composition, the court consists of 11 judges elected in their individual capacities by the AU Assembly taking care to ensure that there is adequate representation of women, the main regions of the continent and the principal legal systems on the continent. These persons must be jurists of high moral character and of recognized practical, judicial or academic competence and experience in the field of human and peoples’ rights. They are nominated by the states party. No two judges should be nationals of one state.

What is the relationship between the Commission and the Court? This relationship is complementary with the court complementing and reinforcing the protective mandate of the commission. The opinion of the commission may be requested when the court is deciding on the admissibility of a case submitted to it by NGOs or individuals. The court may also transfer a case to the commission to deal with. In drawing up the rules of court, the court must consult the commission and the rules must reflect the complementarity between the two bodies. Judgments of the court are sent to the parties, the AU Assembly, the Member states as well as the commission.

Jurisdiction The court has three levels or types of jurisdiction. These are the contentious jurisdiction where cases are brought before it for adjudication leading to binding decisions; the advisory jurisdiction where its advice may be sought on different questions by a state party of the AU, the AU itself or any AU organ or African organization recognized by the AU; and the conciliatory jurisdiction where through its good offices, it may reconcile parties to a dispute pending before it. The contentious jurisdiction extends to all cases submitted to it concerning the interpretation and application of the Charter, Protocol and any other pertinent human rights instruments ratified by the states concerned.

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Functions Any case submitted to the court goes through five main stages namely ➢ access, ➢ admissibility, ➢ proceedings, ➢ applicable law and ➢ the decision of the court. There are two types of access being automatic and optional. A state has automatic access once it ratifies or accedes to the protocol. Cases may be submitted by the African Human Rights Commission; state party which has lodged a complaint with the commission; the state party against which a case has been lodged with the commission; the state party whose citizen is a victim of human rights violations and African inter-governmental organizations. The court allows states to join cases where the state has interest in the matter. Optional access depends on the court’s discretion and a state party accepting, by separate instrument, the court’s competence to receive cases from individuals and relevant NGOs. An individual can sue a state if that state has made a separate declaration stating that the court can hear cases brought against it by individuals. NGOs can sue but they must in addition have observer status before the commission. With regard to admissibility, the court may decide to hear the matter or refer it to the commission. Parties to the proceedings are entitled to legal counsel of their choice. With regard to the applicable law, the court is directed to apply the provisions of the charter and any other relevant human rights instruments ratified by the states concerned. With regard to the decision, judgment of the court must be rendered within 90 days of completion of deliberations in any given case. These are majority judgements with a provision for dissenting judgements. No appeals lie against decisions of the court but the court may review its decision in light of new or fresh evidence. The court may also interpret its own decision. Appropriate orders can be made in the face of violations. The court has power to indicate provisional measures in the interim to preserve the status quo. The parties, the AU and member states all receive copies of the judgment. A report of the court’s work is laid before the AU Assembly each year.

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Future Prospects The African Court of Human and Peoples’ Rights was established through a protocol to the African charter. Its jurisdiction is more civil with the criminal jurisdiction seemingly absent. 30 states have ratified the protocol. The court with its seat in Arusha Tanzania has been operating for more than a decade now. In the meantime, parallel discussions have been going on relating to expanding the jurisdiction of the court. In this light, proposals have been made to create the African Court of Justice and Human Rights. The thinking around this is that the two courts will eventually be merged so that one division of it maintains the civil jurisdiction while the other division discharges criminal jurisdiction. The idea of the criminal court sprung from the need to have African leaders who commit criminal offences tried within the continent rather than subjected to the international criminal court (ICC). There have been complaints that the African leaders are not treated fairly at the international mechanism, the ICC. The Protocol on the Statute of the African Court of Justice and Human Rights was adopted in 2008 and opened for signature and ratification. These have been slowly coming in. The protocol is aimed at creating a new court to provide for criminal jurisdiction so that African leaders can appear before this court and not the ICC. It is yet to be seen how this jurisdiction will be implemented. But at the end of the day, it can be seen that the African system has done its part in attaining human rights for the people on this continent through the regional human rights mechanism.

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The European Human Rights System This section will focus on discussing the European Human Rights system. This is another regional human rights system and the oldest of them all.

Background The European Human Rights System was established within the framework and under the auspices of the Council of Europe, a regional inter-governmental political organization created in 1949. The establishment of the Council of Europe came from the idea and ideological appeal for the political unification of Europe. This was an idea sponsored by a number of European NGOs that combined in 1947 to form the ‘International Committee of the Movement for European Unity’. In 1948, the committee organized a Congress of Europe in which many prominent statesmen participated. The congress expressed the desire for a ‘united Europe’. It also called for a European Charter of human rights. The aim of the council of Europe is to be achieved through its organs by discussion of questions of common concern and by agreements and common action in the maintenance and further realization of human rights and fundamental freedoms [Art 1(b)]. Every member state must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms [Art 3]. Any serious breach of article 3 may lead to suspension of a member state from its rights of representation and loss of membership following a request by the appropriate organ to withdraw. On 4th November, 1950, the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted. It is heavily supplemented by protocols. The convention sets out a number of individual rights and establishes an implementing mechanism consisting of a Commission, Committee of Ministers of the Council of Europe and a Court of Human Rights. Only member states of the Council of Europe may be party to the convention. The European human rights system is considered to be comprehensive, participatory and effective for a number of reasons. First, Europe was already familiar with the conceptual and theoretical foundation of human rights as propounded by the natural law theorists. Second, the famous human rights documents like the 43

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Magna Carta, the Declaration of the Rights of Man and the Universal Declaration of Human Rights, 1948 were all available to be used as working documents (travaux preparatoires). Third, after the second world war, many leaders spoke openly about the need to respect human rights as championed by the United Nations. Fourth, the post-mortem of the war and its horrors led to the conclusion that disrespect for the rule of law and individual freedoms was not acceptable and should therefore not be entertained. The post-war European leaders therefore promoted the creation of a European human rights system as a way of checking, at an early stage, the growth of regimes that based their rule on violation of human rights. As such members of the council of Europe reaffirm their profound belief in those Fundamental Freedoms which are the foundations of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other hand by a common understanding and observance of the human rights upon which they depend. (preamble) Fifth, the struggle against communism made embracing human rights a more lucrative venture. Western Europe felt the need to reaffirm its adherence to the principles of the rule of law and of human rights and fundamental freedoms as core values that distinguished it from Eastern Europe. The cold war did not only induce the creation of institutional structures emphasizing the values that distinguished the west from the east, it also gave birth in the 1970s to efforts aimed at bridging the gap between the two blocks. This led to the creation in 1975 of the Conference on Security and Cooperation in Europe (CSCE) which in 1994 became the Organization for Security and Cooperation in Europe (OSCE). The concluding document of the conference was the Helsinki Final Act (HFA) which was signed by 33 European states including the Soviet Union, the USA and Canada. The end of the cold war and the collapse of the Soviet Union saw the expansion OSCE membership. The HFA ushered in a negotiating process that established a linkage between human rights and security concerns. This linkage gives human rights an important place on the political agenda of East-West relations enabling the OSCE to continue influencing the human rights policies of member states. The OSCE works closely with the council of Europe when it comes to the promotion of human rights.

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The Normative Framework A number of instruments make up the normative framework for the European human rights system. These are: ➢ the European Convention for the Protection of Human Rights 1950 and the additional protocols thereto, ➢ the European Social Charter 1961, ➢ the Convention on Extradition 1957, ➢ the Convention on the Suppression of Terrorism 1977, ➢ the Convention for the Prevention of Torture 1987 and ➢ the Framework Convention for the Protection of National Minorities 1995. Some of these instruments are discussed below:

The European Social Charter This treaty was adopted in 1961 and entered into force in 1965. It complements the European Convention for the Protection of Human Rights by establishing a regional European system for the protection of economic and social rights. An additional protocol to the Charter expanding its catalogue of rights was concluded in 1988 and entered into force in 1992. The Charter proclaims categories of rights and principles such as the right to work, right to safe working conditions, right to social security. States party voluntarily undertake to respect human rights. The supervisory system under it checks whether states are complying with their obligations. There is a state reporting system involving two types of state reports. One is made every two years addressing the domestic implementation of the rights that the state has accepted. The second report is submitted at specific intervals and deals with the status of rights that the particular state party did not accept. The two sets of reports are examined by the Committee of Independent Experts, the Government Committee of the Council of Europe and the Assembly of the Council of Europe. All these are organs of the Council of Europe.

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The Helsinki Final Act Although this is not a treaty requiring ratification, it has had considerable political impact in the protection of human rights. Under its principles, states commit themselves to respect human rights and fundamental freedoms and to fulfil their obligations as set out in the declarations and agreements in that field. The OSCE guaranteed rights have been expanded by the Concluding Documents of the: ➢ Madrid 1983, ➢ Vienna 1989, ➢ Copenhagen 1990, ➢ Moscow 1991, ➢ Helsinki 1992, ➢ Budapest 1994 ➢ The Charter of Paris for a New Europe 1990. The continuous expansion of human rights under the OSCE system has been made possible because of the manner in which the Act itself is drafted, the follow up mechanism it established and the character of the Act as a political rather than a legally binding document.

Additional Protocols The European Convention on Human Rights listed a limited number of human rights. In order to expand these, a number of protocols have over the years been adopted. There are about 11 protocols each bringing on board more rights and guarantees. These protocols have introduced additional rights and broadened the categories from civil and political rights in the convention to include economic and social rights as well. Further, the dual supervisory mechanism (the commission and the court) were replaced by the European court of human rights after the adoption of protocol 11.

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The European Convention for the Protection of Human Rights and Fundamental Freedoms. The convention guarantees a range of human rights and fundamental freedoms for individuals in articles 2 to 18. Two implementing mechanisms exist under the convention; these being the commission and the court. The convention is a legally binding instrument. However, parties are allowed to denounce or make reservations to it. There are a number of important features worth of mention with regard to the European convention on human rights. These include the following: The convention embodies rights as contained in the UDHR. It guarantees to everyone within the territory of a state party rights contained in it and supplemented by the protocols. It does not matter where the person comes from, the only qualification is that such a person must be within the jurisdiction of the state party. Its application is not restricted to Europe alone but extends to states outside Europe where states party are responsible for the particular state’s international relations. In a good number of states, the convention enjoys the status of domestic law. This helps in reporting to the Secretary General of the Council of Europe on the implementation of human rights within the territory. The technique of supplementing the convention with protocols has proved to be very useful in adding to the guaranteed rights as well as refining the implementing mechanisms. It has also helped in refining procedural rules. The rights contained in the convention are not absolute in the sense that each right has a number of limitations, restrictions and derogations except that these limitations etc. must be as prescribed by law and not arbitrary. The court has further emphasized that the application of the limitations should not suppress the right. See: Klass v Federal Republic of Germany 2 EHRR 214; Lawless v Ireland 1 EHRR 15; Ireland v United Kingdom 2 EHRR 25

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The Control Machinery: The European Court of Human Rights The convention initially created two implementing mechanisms being the Commission and the Court of human rights. Both institutions received complaints and could refer to each other. These two systems had overlapping jurisdictions and this created the risk of forum shopping on the part of complainants. In order to maintain and improve efficiency of the protection of human rights and fundamental freedoms, the dual control mechanism was restructured in 1998 by protocol 11, and one permanent implementing mechanism, the European Court of Human Rights was created.

Organization of the Court This is a permanent implementing mechanism consisting of the number of judges equal to the High Contracting states party to the convention. The judges must be persons of high moral character and must possess qualifications required to be appointed to high judicial office. Each state nominates three candidates out of which the Parliamentary Assembly of the Council of Europe elects one judge from each state party who serve for six years and serve in their individual capacities. The court is headed by a President assisted by two vice Presidents and legal secretaries. The court operates in chambers of 7 judges, committees of 3 judges and a grand chamber of 17 judges.

Jurisdiction The court has three types of jurisdiction namely advisory, contentious and conciliatory. The court’s contentious jurisdiction extends to all matters concerning the interpretation and application of the convention and the protocols thereto which are referred to it by way of inter-state cases, individual applications or requests for an advisory opinion. The Committee of the Council of Europe may by majority vote request for advisory opinions from the court on legal questions. Once an application is declared admissible, the court first attempts a friendly settlement of the dispute between the parties to it. Such proceedings are confidential and once a settlement is reached, the case is struck off the list by means of a decision which states the brief facts and the solution reached. Where no friendly settlement is reached, the court proceeds to examine the case in the usual manner in open court. In 48

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terms of access to the court, the states party to the convention have access to the court and may refer to it any alleged breach of the provisions of the convention and the protocols thereto by another state. The state party need not be a victim of the violation. The state may also have access to the court as a third party intervener. Any victim whether direct, indirect, future or potential of human rights violations has locus standi before the court. It is immaterial that the victim is an individual or group of individuals or an NGO. Apart from having access to the court as a victim of human rights abuse, an individual may also have access to the court as a third party intervener. The President may invite any person concerned who is not the applicant to submit written comments or take part in the proceedings as amicus curiae.

Procedure The procedure of the court is at three levels; these being the admissibility stage, the merits stage and the judgement stage. There are six stages in the admissibility stage. These are exhaustion of local remedies, identity of the applicant, no duplication of applications i.e the same case pending elsewhere, must be compatible with the convention or protocols thereto, must not be manifestly ill-founded and should not be an abuse of the right of application. The first of these applies to both inter-state applications as well as individual applications while the remainder apply only to individual complaints. Of these criteria, the exhaustion of domestic remedies seems to be of some importance in respecting the domestic jurisdiction of the states party. The remedies in the state must be available, effective and should not be unduly prolonged. The remedies should also be sufficient as to provide reasonable relief to the complainant. Admissibility is dealt with in two phases starting with the committee of the court which determines whether the court has jurisdiction to entertain the application and then the admissibility proper.

The Merits Stage Once the case has passed the admissibility stage, the court proceeds to hear it on its merits. Here it allows the parties to present their respective cases. Legal representatives are also allowed to

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appear and speak as well as file pleadings before the court. All cases are heard in open court unless

The Inter-American Human Rights System This was the second regional system to be created after the European system. It is the third existing regional human rights system we will discuss to see how it operates to protect human rights within the American region.

Background The Inter-American system of human rights operates under the umbrella of the Organisation of American States (OAS) a regional political organization established by the ninth International Conference of American States. It was established in 1948 by the Charter of Bogota which entered into force in 1951. The OAS developed from the International Union of American Republics which was formed in 1890. The Bogota Charter was subsequently amended by several instruments for various purposes. These include the Protocol of Buenos Aires in 1967 (Argentina), the Protocol of Cartagena de Indias (Colombia) in 1985 which closed the door to membership of the OAS, the Protocol of Washington (USA), 1992 and the Protocol of Managua (Nicaragua) of 1993. The preamble of the Charter of the OAS declares America’s historic mission as being ‘to offer to man a land of liberty, and a favorable environment for the development of his personality and his just aspirations.’ In line with this mission, the same ninth International Conference of American States which established the OAS also adopted the American Declaration of the Rights and Duties of Man. Later in about 1969, the OAS meeting at San Jose, in Costa Rica adopted the American Convention on Human Rights. This entered into force in 1978. A number of protocols and instruments were adopted to supplement the convention. These include The 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, The Protocol of Salvador; The 1990 Protocol to the American Convention on Human Rights to Abolish the Death Penalty adopted at Asuncion, Paraguay; 50

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The 1985 Inter-American Convention to Prevent and Punish Torture adopted at Cartagena, Columbia; The 1994 Inter-American Convention on the Forced Disappearance of Persons adopted at Belen, Brazil; The 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women adopted at Belem do Para, Brazil also known as the Convention of Belem do Para.

The Legal Framework Each of the instruments stated above were adopted for specific purposes mainly to add the missing rights to the system. They were also adopted for purposes of dealing with specific questions of human rights. This can be seen in the convention on the death penalty, the one for the prevention of torture and the one on eradication of violence against women. In order to understand the legal framework for the human rights system in America, a few of these instruments will be discussed below.

The OAS Charter (Pact of Bogota) This constitutional instrument of the OAS makes only a few explicit references to human rights. The document broadly states that the American states proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex. It also provides that each member has the right to develop its cultural, political and economic life freely and naturally. In the exercise of this right, states are obliged to respect the rights of the individual and the principles of universal morality. The charter provides for the Inter-American Commission on Human Rights as one of the principal organs through which the OAS accomplishes its purposes. Its mandate is to promote the observance and protection of human rights and to serve as a consultative organ of the OAS in these matters. The commission was established in 1959 and its statute was adopted at the Council of the OAS in 1960. The statute defines a range of human rights which the commission is to promote and protect as those set forth in the American Declaration of the Rights and Duties of Man. It also

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empowers the Commission to promote research and education in the field of human rights and to make recommendations on the situation of human rights in the Americas.

The American Declaration of the Rights and Duties of Man The declaration was adopted by the ninth International Conference of American States. Being a declaration, it was merely adopted as resolution with no binding effect on the states. In practice however, its force goes beyond that of a mere moral or political document. It protects the rights that are not found in the Convention and therefore remains an important source of obligation for parties to the convention as well. In its preamble, it emphasizes freedom and equality of individuals as well as the rights and duties. It lists 27 rights and 10 duties.

The American Convention on Human Rights (Pact of San Jose, Costa Rica) This treaty was adopted in 1969 and it entered into force in 1978. It guarantees civil and political rights only. In terms of implementation, it provides for the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights having competence with regard to matters relating to the fulfilment of commitments made by states party to the convention. States have two obligations under this convention: an obligation to respect and ensure to all persons’ subject to their jurisdictions the free and full exercise of the rights and freedoms without any discrimination and an obligation to adopt such legislative or other measures as may be necessary to give domestic legal effect to the various rights and freedoms. A derogation as provided by law is allowed.

Protocol of San Salvador This protocol is known as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. It was adopted to fill a gap left in the convention on human rights. The Protocol guarantees second generation rights in a broad sense. States party to this protocol undertake to progressively, within their available means, to realize the rights set out in this protocol through adopting appropriate legislative and administrative mechanisms. States also undertake to submit periodic reports to the OAS on measures taken to realize the rights within their domestic jurisdictions.

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Other Instruments The Protocol to Abolish the Death Penalty provides that states party shall not apply the death penalty in their territories. This instrument enters into force for each state which ratifies it and need not wait for a number of instruments of ratifications. Under the convention to prevent and punish torture, states agree to take measures to prevent and punish torture within their jurisdictions The convention on forced disappearance enjoins parties not to practice, permit etc forced disappearance of persons and to punish perpetrators of the said crime within their territories. The convention on prevention of violence against women enjoins states party to respect women’s rights and to ensure protection for women both in public and private spheres.

Implementing Machinery: The Commission The Inter-American Commission on Human Rights is one of the two implementing mechanisms under the Inter-American system of human rights. This mechanism is a combination of two bodies with the same name created under two different instruments. The OAS Charter was adopted at the same time as the American Declaration of the Rights and Duties of Man in 1948. The Charter made provision for a commission to protect and promote human rights as enunciated in the Declaration. The American convention adopted in 1969 made provision for a commission and a court. The commission therefore derives its mandate from these two sources being the OAS Charter and the Convention both supplemented by the Statute and Regulations of the Commission. The Commission applies two sets of instruments; the Declaration as regards all OAS members and the Convention together with the protocols thereto only as regards the OAS members party to the said instruments. The commission is composed of 7 members elected in their individual capacity by the General Assembly of the OAS. To be elected, persons must be of high moral standing and must have recognized competence in human rights. They serve for 4 years. In terms of functions, competence and procedure, the Commission is assigned two main functions under the OAS Charter namely to promote the observance and protection of human rights and to serve as a consultative organ of the OAS on human rights matters. This mandate is supplemented by the Commission’s Statute which was adopted in 1960 by the Council of the OAS that empowers 53

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the commission to promote research, education and to make general recommendations on the situation of human rights in the Americas. The instrument applied in the exercise of its functions is the Declaration which in a way applies to all member states. See James Terry Roach & Jay Pinkerton v US (1987) Case 9647 (US), Res3/87 of 1987, 8HRLJ 345 The main function of the commission under the Convention is to promote respect for and defence of human rights. In exercising this mandate, the commission is empowered to take action on individual petitions and inter-state complaints, to submit annual reports to the OAS General Assembly, to prepare such studies or reports as it considers advisable in the performance of its duties, and to request the governments of the member states to supply it with information on the measures adopted by them in matters of human rights. The commission is further empowered to raise awareness of human rights among the people, to recommend the adoption of measures that promote human rights among member states and to offer advice as requested. The commission has competence to hear individual petitions and inter-state complaints. Individual complaints may be lodged by the victim, a third party or an NGO recognized among the OAS member states. For inter-state complaints, the states involved must have recognized the competence of the commission to receive and examine any such complaint alleging violation of human rights set forth in the convention. The complaints go through the admissibility stage which includes exhaustion of local remedies which must be realistic and effective and investigation stage at the end of which a report is written. If a settlement is reached, the case is closed. If not, it is referred to the court for hearing if the state has accepted the jurisdiction of the court.

The Inter-American Court of Human Rights The court was provided for by the Convention. It is composed of 7 members elected by the General Assembly of the OAS. The judges serve for six years. To be elected, the persons must be jurists of the highest moral authority and of recognized competence in the field of human rights and the person should ordinarily be qualified to be appointed to the high judicial office in his/her own country. The commission in its capacity as human rights defender and representative of public interest appears in all cases before the court.

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Only states party and the commission may submit cases to the court. However, the court allows victims of human rights abuses to appear and speak if there is need especially at the point of determining the amount of compensation to be paid. The court only hears cases after the commission has completed the admissibility and friendly settlement procedures. See the Matter of Viviana Gallardo et al v Costa Rica (1981) 2 HRLJ where the court ruled that the procedure before the commission was mandatory. On the exhaustion of domestic remedies, see Angel Manfred Velasaquez v Honduras (1986) 11 HRLJ 127; 12 HRLJ 14 Parties are also required to exhaust the local remedies before submitting matters to the court. Only if the said remedies are not effective can the court admit and hear a matter before exhaustion of local remedies. The court exercises contentious and advisory jurisdiction. Contentious jurisdiction is only exercised where parties have recognized the competence of the court to deal with matters. Parties are allowed to file written submissions to the court. During the hearing, the parties then argue out their cases during the merits stage. If the court finds that there has been a violation of human rights, it proceeds to hear the case on reparations after which it makes an award. The court is required to rule that the injured party be assured of the enjoyment of the violated right. It is also required to rule that the circumstances that led to the breach be remedied and that fair compensation be paid to the injured party. The court has power to adopt provisional measures in urgent matters to prevent irreparable damage. The judgments of the court must be reasoned and transmitted to the parties as well as all the states party to the Convention. Dissenting judgments are allowed where the judges are not unanimous in their decision but the majority judgement carries the day. The decision of the court is final and not subject to appeal. It is binding on the parties and states undertake to comply with the judgement of the court. There is no specific body responsible to oversee the implementation of the judgements of the court or the commission. Advisory opinions may be sought by the states and organs of the OAS. The interAmerican system offers a wide range of protection of civil and political rights far more than the other two regional systems.

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TOPIC 4 Nationalization of Human Rights Domestication of Human Rights Zambia is party to a number of human rights instruments both international and regional. Under those treaties, Zambia has undertaken a series of obligations to ensure that the rights guaranteed in those instruments are realized within the nation and are available to the people. The idea is to ensure the practicality of the rights contained in international and regional instruments. Therefore, Zambia is bound to put in place practical measures aimed at realizing the said rights. With regard to international obligations, there are two systems available for states. Some are monist while others are dualist. Zambia is a dualist nation, meaning citizens cannot automatically benefit from the international human rights instruments. There is need for further processes to make the human rights norms applicable in the country. This process is called domestication. It may take the form of enacting a new law whose content is the same or similar to those contained in the international treaty or amending an existing law to incorporate the new norms. There are a number of times that litigants have attempted to rely on international human rights norms and even international law generally to support their claims before national courts. However, such has not been successful even though the courts have taken note. See; Michael Sata v Post Newspaper & Printpak Ltd (1993); Sara Longwe v Intercontinental Hotel 1992/HP/765; Zambia Sugar PLC v Fellow Nanzaluka In monist states, international treaties are said to be self-executing in that once a treaty is signed and ratified, its content is available to the nationals without further action on the part of the national legislature.

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The Constitution and Human Rights In Zambia, the constitution is the supreme law of the land and any other law which is inconsistent with it is void to the extent of the inconsistency. See article 1(1) 2016 constitution, Christine Mulundika & 7 others v The People (1995-1997) ZR 20. The constitution guarantees human rights in the bill of rights. The Bill of Rights only caters for civil and political rights. An attempt to guarantee economic, social and cultural rights failed in 2016 following the failure of the referendum. Apart from the constitution, human rights are also found in other pieces of legislation such as the ZEMA, the ISA among others. Constitutionalism is the concept which requires that limitations be placed on the powers that government wields. It requires that the constitution limits those powers and creates systems that will ensure the effective exercise of constitutional powers to benefit the citizens. Constitutionalism recognizes the necessity of government. With regard to human rights, Constitutionalism influences the government to widen the recognition of human rights to incorporate those not listed in the bill of rights. Government does this through policies on different rights. Therefore, government must put in place mechanisms for the protection and realization of human rights for all in the country.

The Zambian Bill of Rights The bill of rights is contained in Part III of the constitution in articles 11 to 26 both inclusive. This part lists the civil and political rights that are guaranteed and therefore justiciable in this country. The bill of rights first appeared in the self-government constitution of 1963. Since then, all the national constitutions have retained the bill of rights. The bill arose from the realization of the importance of human rights especially after the adoption of the UN Charter which reaffirmed faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The bill of rights seeks to protect the physical integrity of the person through protecting the right to life, freedom from torture etc. It seeks to protect the legal integrity of the person through guaranteeing the right to a fair trial, right to equality etc. It seeks to protect the moral and mental integrity of the person through guaranteeing the right to privacy, the right to non-discrimination etc. It seeks to protect the joint activities of individuals through guaranteeing the freedom of 57

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assembly and association. It protects individual ownership of property through article 26. That is, the right not to be deprived of property without compensation. Despite the seeming wide guarantee of rights, these are only civil and political rights with the economic, social and cultural rights relegated to progressive realization depending on availability of resources. In addition, even though the rights are guaranteed, they each have a number of derogation clauses where the said rights may be taken away lawfully. The only exception is freedom from torture and freedom from slavery. See: John Banda v The People HPA/06/1998; The People v Ian Kainda HLR/01/2000 The guaranteed rights may only be claimed against the state and not against private individuals. The government must put in place systems to realize the rights. These include courts which issue orders or declarations as the case may be at the end of each case. Human Rights should be protected at all times.

The Importance of the Bill of Rights A bill of rights is a list of fundamental human rights guaranteed in the national constitution. A bill of rights is important for three main reasons: a) it is contained in the constitution which is the supreme law of the land. It is not easy to amend the constitution let alone the bill of rights. b) having rights enshrined in the bill of rights makes the realization of the rights certain and predictable. c) only rights contained in the bill of rights are justiciable.

Brief History of the Bill of Rights The bill of rights was first introduced in Northern Rhodesia at the introduction of the selfgovernment rule in 1963. This was in response to the many human rights abuses that characterized colonial rule. A regime in which rights were suppressed using the law. See R v Chona (1945) NRLR. The Monckton Commission was set in 1960 to look into means of introducing self-

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government rule in Northern Rhodesia. After its work, the commission called for legal and political safeguards to be included in the constitutions. The legal safeguards were to consist of bills of rights in national constitutions. The commission argued that the bill of rights would promote great security among all inhabitants of the Federation, would also allay fears of domination, would provide a standard of protection of the people’s rights and would guard the liberties of all persons irrespective of who they were. The commission further proposed a special procedure for the alteration of the entrenched provisions. There was to be an affirmative vote of not less than three quarters of the legislature and there had to be a referendum in which the majority of electors in each main racial groups approved the proposed amendment.

Continuity of the Bill of Rights Since 1963, all the national constitutions that Zambia has had have contained the bill of rights. Minor amendments were made at independence in 1964. Later in 1973 at the birth of the one party state, minor amendments were made to the 1964 constitution the main one being the existence of only UNIP and curtailment of certain freedoms and guarantees. In 1991 at the birth of the third republic and return to multi party politics, some few amendments were made, notable among them the amendment of article 4 to allow other political parties. Since then, no amendments have been made to the bill of rights. In 2016, an attempt was made to include economic, social and cultural rights in the bill of rights. However, this was not successful after the referendum failed to garner the 50% threshold required to amend the bill of rights. As things stand, the bill of rights remains as stated in the 1991 constitution. The bill guarantees civil and political rights each with several derogation clauses except the freedom from torture and the freedom from slavery and servitude. Derogation clauses allow the rights to be limited or taken away using legal provisions such as “reasonably required in the interest of defence, public safety, public order, public morality and public health”.

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Guaranteed Rights The bill of rights guarantees civil and political rights. I.

The right to life is guaranteed in article 12(1) which provides that no person shall be deprived of his life intentionally except in execution of the sentence of a court in respect of a criminal offence under the law in force in Zambia of which he has been convicted. According to this provision, the right to life shall be protected at all times. However, this may be taken away according to the law. This specifically refers to where a person is sentenced to death by a court according to the law. The right to life is therefore not absolute.

II.

The right to property is provided for in article 16 of the constitution according to which, no one shall be deprived of their property without compensation. The enjoyment of this right is qualified by a total of 26 instances when the property can be taken away within the legal provisions existing at the time. see Zambia National Holdings Limited and UNIP v A/G (1993-1994) ZR 115.

III.

The freedom of expression is provided for in article 20 of the constitution to the effect that no one shall be hindered in their enjoyment of the freedom of expression and the freedom to hold opinions. This freedom has a number of derogation clauses to it meaning that in certain instances, a person’s freedom may be curtailed for good reasons. Derogations help in protecting individuals from injury by others in the name of freedom of expression. The limitations relate to those reasonably required in the interest of defence, public safety, public order, public morality or public health. The freedom is also curtailed where it is reasonably required for purposes of protecting the reputations, rights and freedoms of other person etc. All limitations must be reasonably justified in a democratic state.

It was stated in Arthur Wina and others v A/G (1990-1992) ZR 95 that the freedom of expression has several functions: ✓ First, it helps individuals attain self fulfilment in that they are able to express themselves over matters that affect them and also get information needed to help them. 60

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✓ Second, it helps in discovering the truth surrounding a particular issue. It is hoped that those who comment on matters especially in the public domain speak the truth. ✓ Third, it enhances the capacity of individuals to participate in the democratic process of the nation. The more freedom people have to express themselves, the more ability they have to take part in democratic ✓ Fourth, it helps in the drive towards social change because people are able to voice out concern over matters that are affecting them. Although guaranteed, freedom of expression is not a license to defame others and injure them in their reputation. Common complaints relating to this freedom are libel and defamation. Therefore, the restrictions on this freedom are meant to protect the public especially public figures from being injured in their reputation.

IV.

The freedom of assembly and association is provided for in article 21 of the constitution. It is connected with the freedom of expression. This right allows people to assemble and share ideas. However, such freedom is not a passport for organizing clandestine activities in the nation. There are also a number of derogation clauses to this freedom. The state can pass laws that may restrict the enjoyment of this freedom for as long as such restrictions are justified in the interest of defense, public safety, public order, public morality or public health. One such law is the Public Order Act which gives the police power to regulate public assemblies including what is discussed at such meetings. So many cases have been taken to court on claims that the exercise of power vested by the Public Order Act has infringed the fundamental freedoms in the constitution. see Christine Mulundika case.

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TOPIC 5 Domestic or Alternative Means of Human Rights Protection in Zambia A state is bound under both international and national human rights law to respect, protect, promote and fulfil fundamental human rights and freedoms. Therefore, at domestic level, a state must undertake steps towards implementing the human rights. Effective domestic protection of human rights requires the existence of accessible state institutions mandated to monitor and enforce human rights within the country. Monitoring takes place over a long period of time. This is because monitoring involves investigating, observing and documenting facts about a given human rights situation or case. In conducting the monitoring activities, international human rights norms are employed for purposes of comparing whether the state is abiding by its obligations undertaken by virtue of signing and ratifying international human rights instruments. Monitoring tools include interviews, observation, on-site visits etc. After monitoring, reports are produced by the institutions involved and submitted to relevant authorities for action on the standards that may be falling below the accepted ones. Critical agents of promotion, monitoring and enforcement of human rights include: •

NGOs,

•

The legislature,

•

The Judiciary,

•

The police,

•

The Public Protector,

•

The Human Rights Commission,

•

The Anti-Corruption Commission among others.

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The Human Rights Commission The HRC is established by law to investigate human rights abuses within the country. It was established following a recommendation by the Munyama commission of inquiry. Its mandate includes visiting detention facilities to assess the conditions and the welfare of inmates in those facilities. The functions of the commission are protective, monitoring and promotional in nature. It also incorporates research and community education. It can undertake activities such as •

Observations,

•

Inquiry,

•

Hold public hearings,

•

Investigations, follow ups,

•

Onsite visits and

•

Produce reports.

The Public Protector This is established pursuant to article 243 (1) of the constitution. It is headed by the Public Protector. For a person to be appointed as Public Protector, such a person should be qualified to be appointed as a judge. According to article 244, the Public Protector may investigate an action or decision taken or omitted to be taken by a state institution in the performance of its administrative functions. In this way, the Public Protector seeks to realize human rights for the public through ensuring that public institutions and agents are brought to account for their actions.

Parliament Parliament is mandated to enact laws for the country. During the enactment of laws, members of parliament are called upon to be objective and enact laws for the betterment of the nation as a whole. Parliament is one of the three arms of government created by article 62. Article 63 through to article 89 provide details of its functions. In terms of human rights protection, parliament creates the laws that contain human rights which people can claim.

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Non-Governmental Organizations These are established under the Societies or NGO Act.

They are mainly human rights

organizations focusing on women’s rights, children’s rights and generally human rights for all. Some NGOs have observer status before international implementing mechanisms as such they can submit shadow reports. These reports attempt to give what they believe is a true picture of human rights in the country. NGOs provide checks on the government through publicizing matters of human rights abuses happening in the country. In this way, NGOs contribute to the protection of human rights in the country.

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