STUDY GUIDE

Human Rights Law

LLB (Hons)
xxxx

Centre for Open, Distance and e-Learning

Materials Development and Instructional Design Department
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 Human Rights Law

Contents

About this study guide 1

How this study guide is structured ...................................................................... 1

Course overview 3
Welcome to [Add Course title here] [Course Code] ............................................ 3
[Add Course title here] [Course Code]—is this course for you? .......................... 3
Exit Learning Outcomes ...................................................................................... 3
Time frame .......................................................................................................... 3
Study skills .......................................................................................................... 4
Need help? ......................................................................................................... 5
Assignments ....................................................................................................... 5
Assessments....................................................................................................... 5

Getting around this study guide 6

Margin icons........................................................................................................ 6

Unit 1 8
Historical background, international and Constitutitonal context of human rights 8
Introduction................................................................................................. 8
1. ............................................................................................................. W
hat are Human Rights ...................................................................... 8
1.1 ......................................................................................................... P
ostive and negative rights .............................................................. 8
2. ............................................................................................................. H
istorical Background of Human Rights ............................................. 9
2.1 ......................................................................................................... O
rigin of human rights....................................................................... 9
2.2 ......................................................................................................... D
evelopment of human rights ......................................................... 10
2.3 ......................................................................................................... R
ole of human rights....................................................................... 11
3. ............................................................................................................. H
uman rights in the international context ......................................... 11
3.1................................................................................................................... T
he International bill of rights ......................................................... 11
3.1.1 The Universal Declaration of Human Rights ................................. 11
3.1.2 International Covenant on Economic, Social and Cultural Rights . 12
3.1.3 The International Covenant on Civil and Political Rights ............... 12
 4. ............................................................................................................. H
uman rights in the regional context ................................................ 13
4.1 ............................................................................................................. A
frican Human Rights system ................................................... 13
4.2 ............................................................................................................. A
frican Charter on Human and People’s Rights as a regional
instrument ............................................................................... 14
4.3 ............................................................................................................. P
rotocol on Women’s Rights ................................................ 14-15
4.4 ............................................................................................................. T
he African Court on Human and People’s Rights .................... 15
5. ............................................................................................................. H
uman rights in the constitutional environment ........................... 15-16

Unit summary .................................................................................................... 17

References ....................................................................................................... 17

Unit 2 19
Content, scope, obligations for human rights and the remedies ....................... 19
Introduction............................................................................................... 19
Content and scope of human rights.......................................................... 19
claim rights and liberty rights .................................................................. 19
generations of rights ............................................................................... 20
principles of human rights .................................................................. 21-22
Limitation and derogation of human rights ............................................... 21
limitations ................................................................................................ 21
derogations ............................................................................................. 22
Subjects of human rights .......................................................................... 22
right holder .............................................................................................. 22
duty bearer.............................................................................................. 22
Imposed obligation of Action or Omission ................................................ 23
procedural obligation............................................................................... 23
Right to an effective remedy ................................................................ 23-24

Unit summary .................................................................................................... 24

References ....................................................................................................... 24
 Human Rights Law

About this study guide

Human Rights Law xxxx has been produced by the Centre

for Open, Distance and e-Learning. All study guides
produced by the Centre for Open, Distance and e-Learning
are structured in the same way, as outlined below.

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1
About this study guide Human Rights: Historical background, International Context and Constitutional Environment

 An introduction to the unit content.

 Unit outcomes.

 New terminology.

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 Human Rights Law

Course overview

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The “How to study” web site is dedicated to study skills
resources. You will find links to study preparation (a list of
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questioning/listening/observing skills, getting the most out
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staying motivated, developing a learning plan.

4
 Human Rights Law

The above links are our suggestions to start you on your

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5
Getting around this study guide

Margin icons

While working through this study guide you will notice the
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Activity Additional Answers to Assessmen

reading Assessmen t
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Learning Activity
Outcomes

Prescribed Recommen
Note Outcomes Reading ded website
it!/Warning

References Reflection Study skills Summary

6
 Human Rights Law

Terminolog
Tip Video
y

Unit 1

Human Rights: Historical background,

International Context and Constitutional
Environment

Introduction

Welcome to Unit 1, this unit will deal with the origin of Human Rights and its
contexts.

Upon completion of this unit you should be able to:

 define the concept human right;

 discuss the development of international human rights;

Outcomes  outline the instruments of international human rights;

 indicate the mechanisms on each level for enforcing

human rights.

 defend the role and importance of human rights.

Govindjee, A (Ed.) et al. 2016. Introduction to human rights

law, 2nd Edition, Durban: LexisNexis, pp. 1-38.

Prescribed
reading

canon: The generally excepted rule/principle

7
 Terminology oppressed: To be subjected to unjust or cruel exercise
of authority or power, particularly, when
those who exercise that power or authority
are so dominant that the oppressed
people cannot effectively protect their own
basic interests through the exercise of
liberties or power at their command.

immemorial: That is beyond memory

incumbent: Imposed on someone as an obligation

contemporary: Of the present age

1. 1 What are Human Rights?

Watch the following video clips to get an appreciation of the

historical background and nature of human rights.
Locke's Natural Rights, Available at
Activity
[Link]
What are the universal human rights? – Benedetta Berti,
Available at
[Link]
What are Human Rights?, Available at
[Link]

8
 Human Rights Law

Human rights are rights inherent to all human beings irrespective of their nationality,
place of residence, sex, national or ethnic origin, colour, religion, language, or any
other status. All human beings are equally entitled to their human rights without
discrimination. Human rights can never be taken away, although they can
sometimes be restricted – for example if a person breaks the law, or in the interests
of national security.

Source: ???

The 1993 Vienna Declaration on Human Rights states that all human rights are:

 Inherent: the birth right of all human beings by virtue of their humanity alone
(they do not have, for example to be purchased or to be granted);

 Inalienable: human rights cannot be taken away, except in specific situations

and according to due process. For example, the right to liberty may be
restricted if a person is found guilty of a crime by a court of law.

 Universal: human rights apply equally to all human beings without

discrimination of any kind.

 Indivisible: all human rights have equal status and cannot be ranked in
hierarchical order;

9
  Interdependent and interrelated: each right may in part or fully be
dependent on the realisation of other rights.

The international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis. While the
significance of national and regional particularities and various historical, cultural
and religious backgrounds must be borne in mind, it is the duty of States,
regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.

Choose any right of your choice. Discuss the main features

of human rights as listed above with reference to the right
you chose.
Activity

This is a self-evaluation activity. Do your own self research to

answer the given questions.

Feedback

10
 Human Rights Law

1.2 Universalism versus cultural relativism

The controversy between the universality of human rights and cultural relativism is
well captured by Chih-yu Shih. In the words of Shih:

“The debate between human rights universalists and cultural relativists has
continued into the 21st century. Many writers today have acknowledged that
universalism is the product of European history. As a result, the center of the
current debate veers away from the argument over whether or not human rights
are universal rights in actuality. What concerns a good number of thinkers today
is whether or not human rights “should be” universal. Human rights universalism
has always been challenged on the ground that it represents a form of cultural
imperialism or hegemony. Having such origins, it denies communitarian values,
especially of the so-called non-Western societies. In response, universalists often
accuse relativists of providing excuses for legitimizing political suppression.”
(Shih,2002).

The conflict between human rights and cultural relativism is also very relevant in
Namibia. This controversy, for example, is clearly depicted in a newspaper article
published by the Namibian newspaper on 22 February 2018 under the caption
‘Child bride sold for a cow’.

11
 CHILDHOOD STOLEN ... Zerihongua Muhenje and her
cousin, who is also married, The Namibian, 22.02.2018.

Refer to the newspaper article mentioned above and discuss

the following question.

Activity Write short notes on the universality of human rights and

cultural relativism. Your essay, at the minimum, must
address the following issues:

 The tension at play and why is it so ubiquitous?

 How does this tension impact human rights

interventions?

 Give an informed critique on the issue.

12
 Human Rights Law

This is a self-evaluation activity. Do your own research to

write a well-informed essay.

Feedback

1.3 Categories of human rights

Human rights are, generally, divided into five (5) primary categories namely:

 civil rights e.g. the right to be treated as an equal to everyone in society;

 political rights e.g. the right to vote, freedom of speech, and access to
information;

 economic rights e.g. the right to participate in an economy that benefits all,
and a desirable work

 social rights e.g. the right to education, health care, social security, food,
clothing and adequate housing;

 cultural rights, which include the right to freedom od religion, speaks one’s
won language, and practice one’s culture.

13
Source: Amnesty International, NL

The dominant conventional view has been that the civil and political (CP) rights are
essentially distinct from economic, social and cultural (ESC) rights. Therefore, in
terms of his view the methods for their implementation and enforcement
cannot be the same, but rather need to reflect these distinctions. This
view, accordingly, distinguishes between so-called first generation, second
generation and third generations of rights. However, in recent times, a substantial
amount of scholarly analysis dispels arguments regarding the superiority of CP
rights over ESC rights. In fact, paragraph 5 of the 1993 Vienna Declaration on
Human Rights expressly calls on the international community to treat all:

“human rights globally in a fair and equal manner, on the same footing,
and with the same emphasis.”

14
 Human Rights Law

The fallacy of the distinction between CP rights and ESC rights is aptly captured in
the Preamble of the African Charter on Human and Peoples Rights (African
Charter). The Charter’s Preamble boldly proclaims that:

“that civil and political rights cannot be dissociated from economic, social
and cultural rights in their conception as well as universality and that the
satisfaction of economic, social and cultural rights is a guarantee for the
enjoyment of civil and political rights."

Read the Certification of the Constitution of the Republic of

South Africa, 1996 (CCT 23/96) [1996] ZACC 26.

Activity Analyse paragraphs 76-78 of the judgment and comment on

how the South African Constitutional Court responded to the
objections against the inclusion of ESC rights in the SA
Constitution. Specifically, how did the Court respond to the
objections that ESC rights:

1) interfere with the separation of powers doctrine;

2) are non-justiciable.

This is a self-evaluation activity. You are well advised to

attempt it.

Feedback

You are strongly advised to desist from using the phrases of

first generation, second generation and or third generation

Note it! rights in this module.

15
 “The distinction between ‘first’ and ‘second’ generation rights,
between justiciable rights and aspirational goals — a legacy
of false dichotomies between the two covenants has now
Activity being rejected.” – Ms. Leilani Farha, UN Special Rapporteur
on adequate housing, 2016.

Critically evaluate this statement.

This is a self-evaluation activity. Do your own research to

write a well-informed essay.

Feedback

1.4 Sources of human rights

Human rights are legally guaranteed and protected in various international and
regional human rights instruments.

1.4.1 International human rights instruments

There are nine (9) core international human rights instruments. Each of these
instruments has established a committee of experts to monitor implementation of
the treaty provisions by its States parties. Some of the treaties are supplemented by
optional protocols dealing with specific concerns.

Source: OHCHR.

16
 Human Rights Law

The Universal Declaration on Human Rights (UDHR), the

International Covenant on Civil and Political Rights (ICCPR)

Note it! and the International Covenant on Economic, Social and

Culture Rights (ICCPR) are collectively referred to as the
International Bill of Rights.

1. Which of the international human instruments referred

to above have been ratified by Namibia?

Activity 2. Refer to article 144 of the Namibian Constitution to

discuss the legal status of international human rights
instruments ratified by the Namibian Government.
Refer to relevant case law to substantiate your
answer.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

17
1.4.2 African Human Rights Instruments

The African human rights system is composed of several human rights treaties or
agreements between the African Union member states and the mechanisms that
monitor compliance with these treaties. These include:

 The African Charter on Human and Peoples’ Rights (African Charter);

 African Charter on the Rights and Welfare of the Child;

 The African Youth Charter;

 The Protocol to the African Charter on Human and Peoples' Rights on the
Rights of Women in Africa; and

 The African Union Convention for the Protection and Assistance of Internally
Displaced Persons

The African Charter is the supreme human rights instrument for Africa. It is
supervised and monitored by the African Commission on Human and Peoples’
Rights (African Commission). The African Charter has the following unique features:
1. protects both civil and political rights and economic, social, and cultural
rights. It recognises the indivisibility of all rights and that ESC rights are as
justiciable as CP rights. This was clarified by the African Commission in the
SERAC v Nigeria case:
“Clearly, collective rights, environmental rights and economic and social
rights are essential elements of human rights in Africa. The African
Commission will apply any of the diverse rights contained in the African
Charter. It welcomes this opportunity to make clear that there is no right in
the African Charter that cannot be made effective.’ (SERAC v Nigeria, para
68)

2. It does not allow for derogations of rights under any circumstances. To this end,
the African Commission stated:

“[T]he African Charter does not contain a derogation clause. Therefore, the
limitations on the rights and freedoms enshrined in the Charter cannot be
justified by emergencies and special circumstances. The only legitimate
reasons for limitations to the rights and freedoms of the Charter are found in
article 27(2).” (Media Rights Agenda v Nigeria, paras 68 & 69).
3. The Charter recognises peoples’ rights such as the peoples’ rights to
development, free disposal of natural resources, and self-determination. This
was emphasised by the Commission in the Endoroise case:

18
 Human Rights Law

“The African Commission wishes to emphasise that the Charter recognises the
rights of peoples.” (Endorois v Kenya para 155)
4. The Charter imposes duties on both states and individuals. In the words of the
African Commission:
“The African Commission wishes to emphasise that the Charter recognises the
rights of peoples.’ (Endorois case, para 155) ‘The enjoyment of rights and
freedom also implies the performance of duties on the part of everyone.”
(Preamble of the African Charter)

The ground-breaking work of the African Commission is aptly capture in the work
tilted ‘A Guide to the African Human Rights System’ done by the Centre of
Human Rights of the University of Pretoria. This celebratory work lists the
following amongst some of the Commission’s achievement:

19
 The African Commission has established itself firmly as the primary human rights
body on the African continent. Through its progressive interpretation of the
Charter, the Commission has given guidance to states about the content of their
obligations under the Charter, and its provisions have inspired domestic
legislation. In a number of countries, the Charter is an integral part of national
law by virtue of the constitutional system in place. At least one state, Nigeria,
has explicitly made the Charter part of domestic law through domesticating
legislation. The normative impact of the Charter has been significant. In its
thematic resolutions, the Commission clarified the scope of rights and provided a
yardstick for the development of domestic law, in particular in the ‘Principles and
Guidelines on the Right to a Fair Trial’ and the ‘Principles of Freedom of
Expression’. It urged states to adopt a moratorium on the death penalty, thus
supporting the trend towards abolition in Africa. The principle that indigenous
peoples are rights-holders under the Charter was clearly established. In its
Advisory Opinion on the United Nations Declaration on the Rights of Indigenous
Peoples, the Commission addressed the concerns of African states about this
Declaration, and thus contributed to its eventual adoption by most African states.
Through its active participation in the adoption of the Women’s Protocol, the
Commission provided clarity about the rights of women in the African context,
and provided invaluable guidance to African states. The African Commission
also adopted the Model Law on Access to Information in Africa in April 2013
during its 53rd Ordinary Session. (Centre of Human Rights,

Read the case of Interights v Namibia (Communication No.

239/2001) [2002] ACHPR 36; (16 MAY 2002).

Activity Make a case summary of the judgment.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

20
 Human Rights Law

1.4.3 The Namibian human rights system

Chapter 3 of the Namibian Constitution contains the Bill of Rights (BoR). The
Namibian BoR expressly entrenches 15 fundamental human rights and 10
fundamental human freedoms.

Source: LAC

Article 5 of the Constitution obliges all organs of state, state owned enterprise
(SOEs), and where applicable natural and juristic person to respect and uphold the
human rights of all persons.

No human right and or fundamental freedom is absolute. The Namibian Constitution

affirms this in article 22. However, any intended limitation must comply with the
criteria listed in the general limitation clause (article 22).

21
 Read the cases of:

1. African Personnel Services v Government of Namibia

Activity and Others (Case No.: A 4/2008 ) [2008] NAHC 148
(01 December 2008)

2. Africa Personnel Services (Pty) Ltd v Government of

Republic of Namibia and Others (SA 51/2008 ) [2009]
NASC 17 (14 December 2009);

i. Critically compare the two judgments in respect of

the limitation of the right to carry on any trade or
business.

ii. Which rights were at stake in this case?

iii. Explain, in your own words, why the HC found the

limitation imposed reasonable and justifiable?
iv. Explain, in your own words, why the SC found the
limitation imposed unreasonable and
unconstitutional?

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

22
 Human Rights Law

Article 24 of the Namibian Constitution provides for the suspension/derogation of

rights in certain circumstances. However, certain rights may never be suspended
under any circumstances. Article 24(3) lists the non-derogable rights.

International human rights law dictates that 'where there is a right, there is a remedy'
whenever such a right is violated. The Namibia Constitution subscribes to this
maxim in article 25. This article entitles any person who claim that his/her
fundamental right or freedom as guaranteed in the Constitution has been infringed
or threatened to approach a Court to enforce or protect such a right or freedom.
Both the Constitution and the Ombudsman Act impose a duty on the Ombudsman
to investigate allegations concerning the breach of fundamental human rights.

The rights and freedoms entrenched in the Namibian BoR are strictly entrenched. It
cannot be amended in any way that seek to reduce it. It can only be amended in a
positive manner. In other words, in a way to better them. This is provided for in
article 131 of the Constitution.

Source: Amnesty International, NL

23
 The complementary link between the national, regional and
international human rights protection systems cannot be

Note it! over-emphasised. The following diagram depicts this link.

Source: OHCHR

24
 Human Rights Law

Unit summary

In this unit you learned about the main features of human rights. You
also learned about the different categories of rights. You have seen
that all rights are equal in status and importance. You learned that
human rights are legally guaranteed and protected in international,
Summary regional and national human rights instruments. You became aware
that the rights and freedoms guaranteed in the Namibian Constitution
are absolutely entrenched.

This unit serves as an introduction to human rights in general. The

next unit will build on this by looking the Obligations imposed by
human rights.

References

Chih-yu Shih. 2002. Opening the Dichotomy of Universalism

and Relativism. Human Rights and Human Welfare, Volume
2:1. Available at
References [Link]
[Link]
Centre for Human Rights. 2016. A Guide to the African
Human Rights System. Available at:
[Link]

25
Unit 2
The content, scope, obligations of human
rights and remedies

Introduction

The United Nations in the Vienna Declaration, which is yet to

be discussed, said that:

All human rights are universal, indivisible, interdependent

and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis.”

You must understand that these concepts are foundational to

the general understanding of human rights. The need to
realise in practise the universality, indivisibility and
interdependence of human rights is seen as one of the main
priorities in the human rights field and as one of greatest
challenges in the global protection of human dignity. Upon
completion of this unit you should be able to:

 distinguish between positive and negative claim and

liberty rights

 Identify the generations human rights

Outcomes
 discuss the subjects of human rights and the obligations
imposed

 recommend the elective remedies for human rights

violations

26
 Human Rights Law

UN Human Rights Committee. 2004. “General Comment 31:

Nature of the General Legal Obligation Imposed on States
Parties to the Covenant. Available at:
Prescribed [Link]
reading [Link]?Lang=en&TreatyID=8&DocTypeID=11

UN Committee on Economic, Social, and Cultural Rights.

1994. “General comment No. 3: The nature of States parties
obligations (Art. 2, par. 1). Available at:
[Link]
[Link]?Lang=en&TreatyID=9&DocTypeID=11

UN Committee on Economic, Social, and Cultural Rights.

1994. “General comment No. 4: The right to adequate
housing (art. 11 (1) of the Covenant), Available at:
[Link]
[Link]?Lang=en&TreatyID=9&DocTypeID=11

African Commission on Human and Peoples’ Rights. 2011.

“Guidelines And Principles On Economic, Social And Cultural
Rights In The African Charter On Human And Peoples'
Rights.” Available at [Link]

adequate: Sufficient or minimal requirement

pertaining: In relation to something

surpass: To exceed
Terminology
derogation: Temporary nullification of a right

27
 2.1 Scope and content of human rights

Every human right has a specific scope and content. The rights to adequate
housing as guaranteed in article 11(1) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) will be used to illustrate this.
The United Nations Committee on Economic, Social and Cultural Rights (the
ESCR Committee), the committee which supervise and monitors the
implementation of the ICESCR, clarified the content and scope of the right to
adequate housing in its General Comments No.4 and 7.

The CESCR categorically stated that the right to adequate housing applies to
everyone. Individuals, as well as families, are entitled to adequate housing
regardless of age, economic status, group or other affiliation or status and other
such factors. In particular, enjoyment of this right must not be subject to any form
of discrimination.

28
 Human Rights Law

The CESCR further clarified that the right to adequate housing should not be
interpreted in a narrow or restrictive sense. The right to adequate housing
should be seen the right to live somewhere in security, peace and dignity. It
should be ensured to all persons irrespective of income or access to economic
resources.

Further, the ESCR Committee has underlined that the right to adequate housing
is more than simply a right to shelter. Adequate housing must provide ‘more than
four walls and a roof’. To this end, a number of conditions must be met before
particular forms of shelter can be considered to constitute “adequate housing.”
For housing to be adequate, it must, at a minimum, meet the following criteria:

 Security of tenure for its occupants

 Availability of services, materials, facilities and infrastructure;

 Affordability;

 Habitability;

 Accessibility;

 Location; and

 Cultural adequacy

These criteria constitute the content of the right to adequate housing.

The UN Committee on Economic, Social and Cultural Rights,

the African Commission on Human and People Rights, and

Note it! other human rights bodies consistently clarified that the right
to adequate housing as guaranteed under international
human rights law also extent to residents of informal
settlements.

29
 What does each of these aspects mean? Also, the non-enjoyment of any of
these aspects mean the full spectrum of the right is not enjoyed. To
illustrated this, the findings of a site visit made to the Ombili informal
settlement in Windhoek in 2019 by a group of students as part of their
assignment will be used to apply the right to adequate housing.

i) Legal security of tenure: In a nutshell tenure can take a variety of forms,

including rental accommodation, cooperative housing, lease and
informal settlements, including occupation of land or property. All
persons should possess a degree of security of tenure which
guarantees legal protection against forced eviction, harassment and
other threats.1

The students’ observation mission to the Ombili informal settlement found that:

“there is no form of legal security of tenure in Ombili. Most of the residents in the
informal settlement reside there illegally. There is no payment of rent on the land
to the City of Windhoek. These residents thus do not enjoy security of tenure as
required under international by international human rights”.

ii) Availability of services, materials, facilities and infrastructure: An

adequate house must contain certain facilities essential for health, security,
comfort and nutrition. All beneficiaries of the right to adequate housing should
have sustainable access to natural and common resources, safe drinking water,
energy for cooking, heating and lighting, sanitation and washing facilities, means
of food storage, refuse disposal, site drainage and emergency services.2

1
CESCR General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)
2
CESCR General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)

30
 Human Rights Law

The students’ observation mission to the Ombili found:

“Within a total inspection of the informal settlement the only resource in place is
safe drinking water which is obtained through municipal taps. These taps work
with a card that has money placed on the card account at the City of Windhoek
office in Freedom Square to determine how much water can be drawn. There is
no electricity, sanitation and washing facilities at the settlement resulting Ombili
informal settlement not meeting the second requirement. There isn’t any form of
sanitation and the pollution mixed with rain water can prove to be a breeding
ground for diseases.”

Figure 1: People queuing to collect water in Ombili

31
 Figure 2: Many people practice open defecation in Ombili

iii) Affordability: Personal or household financial costs associated with housing

should be at such a level that the attainment and satisfaction of other basic
needs are not threatened or compromised. 3

iv) Habitability: Adequate housing must be habitable, in terms of providing the

inhabitants with adequate space and protecting them from cold, damp, heat,
rain, wind or other threats to health, structural hazards, and disease vectors. 4

The students’ observation found that:

“The houses in Ombili are predominantly build with corrugated iron sheets.
These have poor thermodynamic properties as they tend to heat up during the
day and freeze up at night. Winds and heavy rains if strong enough can
dismantle the house structures since they lack basic bracing.”

3
???
4
CESCR, General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)

32
 Human Rights Law

Figure 3: Typical housing structures in Ombili

v) Accessibility: Adequate housing must be accessible to those entitled to it.

Disadvantaged groups must be accorded full and sustainable access to
adequate housing resources. Thus, such disadvantaged groups as the elderly,
children, the physically disabled, the terminally ill, HIV-positive individuals,
persons with persistent medical problems, the mentally ill, victims of natural
disasters, people living in disaster-prone areas and other groups should be
ensured some degree of priority consideration in the housing sphere. 5

The student observation is of the opinion that:

“Ombili is on a hilly topography. This makes its pathways extremely unpleasant.

It would prove very difficult to use the elderly and young alike. This makes the
settlement less accessible. This means that Ombili, as a place of residence is
not accessible to many people. It there doesn’t meet the adequacy requirement
in this regard.”

vi) Location: Adequate housing must be in a location which allows access to

employment options, health-care services, schools, childcare centers and other
social facilities.6

The students’ observation was of the view that:

5
CESCR General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)
6
CESCR General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)

33
 The Ombili settlement is toward the outskirts of Windhoek. This is a
disadvantages location as schools and healthcare services are quite a distance
away. The most used mode of transport is foot, so it makes its location more of a
problem.

vii) Cultural adequacy: The way housing is constructed, the building materials
used and the policies supporting these must appropriately enable the expression
of cultural identity and diversity of housing.7

In the view of the students who did the observation:

“The corrugated iron sheets used to build the housing structures in no way
represents safe and cultural housing in Namibia. The only expression portrayed
by these structures is poverty which is in no way cultural.

The situation in Ombili begs the question: can and should someone be held
account? If so, who?

2.2 Human rights obligations

Under international human rights law the state is regarded as the the primary
duty bearer of human rights. It imposes the obligations ‘to respect’, ‘to protect’,
and ‘to fulfil’ on the state.

7
CESCR General Comment No. 4: The Right to Adequate Housing (Art. 11 (1)
of the Covenant)

34
 Human Rights Law

Source: Amnesty International, NL

35
 The Icelandic Human Rights Centre8 has done a succinct analysis of these
obligations.

Obligations to respect: In general, this level of obligation requires the state to

refrain from any measure that may deprive individuals of the enjoyment of their
rights or of the ability to satisfy those rights by their own efforts.

OUTCRY: A severely injured Luise Mwanyangapo following

Saturday night’s alleged assault by soldiers at a bar. PHOTO:
CONTRIBUTED, Sun, 29/4/19

Obligations to protect: This level of obligation requires the state to prevent

violations of human rights by third parties. The obligation to protect is normally
taken to be a central function of states, which must prevent irreparable harm
from being inflicted upon members of society. This requires states: a) to prevent
violations of rights by any individual or non-state actor; b) to avoid and eliminate
incentives to violate rights by third parties; and c) to provide access to legal
remedies when violations have occurred in order to prevent further deprivations.

8
[Link]
concepts-ideas-and-fora/part-i-the-concept-of-human-rights/definitions-and-
classifications

36
 Human Rights Law

The current spate of gender-based violence (GBV) in the country raises serious
human rights concerns. The question to be asked is whether the government is
doing enough to protect women, girls and children from GBV. This is so because
the primary responsibility to both protecting and regulating the exercise of rights
lies with the state.
Police record 200 GBV cases per month News - National | 2019-09-18, Page no:5, The Namibian.

by Namibia Press Agency

THE police Gender-based Violence Protection Unit in Windhoek gets more

than 200 reports of cases under the Domestic Violence Act on a monthly
basis.

Speaking to Nampa on Monday, the unit's commander, Hendrick Olivier, said in

a month, the unit handles cases such as rape, assault with intent to cause
grievous bodily harm (GBH), assault by threatening, common assault, child
neglect, sexual harassment, concealment of birth, crimen injuria and defamation
of character and other cases under the Domestic Violence Act.

37
 Write a critical analysis on how, in your opinion, the
Government of the Republic of Namibia (GRN) may be failing
in its duty to protect victims of GBV in the country.
Activity

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

38
 Human Rights Law

Obligations to fulfil: This level of obligation requires the state to take measures
to ensure, for persons within its jurisdiction, opportunities to obtain satisfaction of
the basic needs as recognised in human rights instruments, which cannot be
secured by personal efforts. Although this is the key state obligation in relation to
economic, social and cultural rights, the duty to fulfil also arises in respect to civil
and political rights. It is clear that enforcing, for instance, the prohibition of torture
(which requires, for example, police training and preventive measures), the right
to a fair trial (which requires investments in courts and judges), the right of free
and fair elections or the right to legal assistance, entails considerable cost.

The above analysis, as done by the Icelandic Human Rights Centre,

demonstrates that there is little difference in the nature of state obligations in
regard to different human rights. The three levels of obligation encompass both
civil and political rights and economic, social and cultural rights, blurring the
perceived distinction between them.

It is relevant to note that the obligation to fulfil can be further subdivided into
three main dimensions:

(a) The obligation to fulfil (facilitate) requires States parties to undertake

positive measures and enabling strategies to assist individuals to enjoy their
rights, for example by ensuring that education in schools is of a good quality and
culturally appropriate for minorities;

(b) The obligation to fulfil (promote) imposes a duty to disseminate

information and undertake educational measures to raise awareness about a
particular right;

(c) The obligation to fulfil (provide) requires States parties to provide for rights
directly in cases where an individual or group is unable, for reasons beyond their
control, to enjoy a right by the means at their disposal.9

9
Economic and Social Council.2007. Social and human rights questions: human
rights. Report of the United Nations High Commissioner for Human Rights, par.
12. Available at
[Link]

39
 The table below depicts the general obligations imposed by all human rights.

Source: Danish Institute for Human Rights

2.3 Obligation imposed by ESC rights

Article 2(1) of the ICESCR states that:

“Each State Party to the present Covenant undertakes to take

steps, individually and through international assistance and co-
operation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative
measures”.

2.3.1 The obligation to use the “maximum available resources”

This article 2 (1) obligates each State party to take the necessary steps “to the
maximum of its available resources”. In as much as lack of resources may
hamper the full implementation of ESC rights in a given State it does not
exonerate such a state from its obligations. In fact, where lack of lack of
resources is raised, a State will have to:

40
 Human Rights Law

“demonstrate that every effort has been made to use all resources that are
at its disposition in an effort to satisfy, as a matter of priority, the minimum
obligations of the right in question [emphasis added].”10

The Committee further stressed, even where the available resources are
demonstrably inadequate, the obligation remains on the state to strive to ensure
the widest possible enjoyment of the relevant rights under the prevailing
circumstances. Similarly, the Committee underlines the fact that even in times of
severe resources constraints of whether caused, the vulnerable members of
society can and indeed must be protected by the adoption of relatively low-cost
targeted programmes. 11

The term “available resources” includes resources available to a State

internationally through international assistance and cooperation, especially
economic and technical. Equally, the term not only refers to the financial
capacity of a State, but also to other types of resources relevant to the
realization of economic, social and cultural rights, such as human, technological
and information resources.12

10
CESCR, General Comment No.3: The Nature of States Parties’ Obligations
(Art. 2, Para. 1, of the Covenant), par.10.
11
Ibid., par.12.
12
Ibid., par.13.

41
 Activity

Source: The Namibian, 08.02.19.

Write an essay on whether Namibia, in your opinion, is its

available resources to fight the scourge of poverty consistent
with the requirements of international human right law.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

42
 Human Rights Law

2.3.2 To obligation of ‘progressive realisation’

‘Progressive realisation’ is a concept closely associated with to the

implementation of the ICESCR.

The CECR clarified that:

“progressive realization constitutes a recognition of the fact that full

realization of all economic, social and cultural rights will generally
not be able to be achieved in a short period of time”. 13

Progressive realization is thus a “flexibility device” that acknowledges the

difficulties of any state trying to implement these rights. However, the Committee
made it clear that the notion of progressive realisation does not exonerate states
from taking action. Indeed, the obligation is:

“to move as expeditiously and effectively as possible towards that

goal”, and “any deliberate retrogressive measures in that regard
have to be fully justified”. 14

13
CESCR, General Comment No.3, par.9.
14
Ibid.

43
 The term progressive realisation, as noted by the High Commissioner for
Human Rights has acquired a specific meaning in international human rights law
as made clear by CESCR Committee through its various General Comments.
The High Commissioner affirms that progressive realisation implies:

“an immediate obligation […] to undertake targeted steps towards

full realisation of economic, social and cultural rights”.15

Furthermore, deliberate retrogressive measures are impermissible, and states

have a duty to immediately satisfy at least the minimum essential levels of ESC
rights. States are also required to immediately guarantee non-discrimination
regarding these rights. Finally, progressive realisation implies the need for
monitoring mechanisms, which in turn requires both accountability and
benchmarks based on internationally agreed development targets. 16

2.3.3 The obligation of non-discrimination

2.4 Availability, Accessibility, Acceptability and Quality (AAAQ)

obligations

Within the human rights framework, there is an explicit focus on accountability of

the duty-bearer towards the rights-holders. The state must be responsible for
adherence to human rights standards as well as being answerable to laws and
policies. If it fails to do so, the principle of accountability demands the availability
of means for rights-holders to seek and obtain redress.17 To measure state
compliance with the obligations to fulfil ESC rights, the ESCR Committee
developed the availability, accessibility, acceptability and quality (AAAQ)
framework. The AAAQ criteria applies to the provision of good and services
provided by the state.

15
Economic and Social Council, par. 76. Footnote 9 above
16
Ibid., paras. 76-80.
17
Boesen, JK & Martin, T (2007: appendix 3, p. 42) as quoted in ….

44
 Human Rights Law

Source: Danish Institute for Human Rights, 2015

45
 The AAAQ criteria is a useful to measure the enjoyment of all ESC rights in a
specific context. This has been clarified by the ESCR Committee in its various
General Comments dealing, for instance with the rights to water, food,
education, health and housing respectively. A summary of the AAAQ criteria as it
applies to these rights is shown in the table below.

Source: Danish Institute for Human Rights, 2014

Consider the water, housing, education or health situation in

any locality of your choice. Evaluate the situation against the
human rights AAAQ criteria.
Activity

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

46
 Human Rights Law

Unit summary

In this unit you learned about the scope, content, and

obligations of human rights. You have learned that any given
human right has a specific scoped and content. Also, that all
rights must be respected, promoted and fulfilled by the state,
Summary and where applicable by no-state actors. You have seen that
in respect of ESC rights, the state is having the additional
obligations to use the maximum of the resource at its
disposal to ‘progressively realise’ the enjoyment of all ESC
rights. Importantly, where the state is providing goods and
services, such goods and services must be available,
accessible, acceptable and of quality for the intended
beneficiaries. No-compliance with any of these obligations
constitute a violation of the right in question and give the
rightsholder(s) the right to an effective remedy.

The first two units was very generic in nature. It explained the
standards and principles of human rights in general terms.
The next units will look at human rights in the Namibian
context. This will be supplemented with decisions of
international and regional human rights bodies where
applicable.

References

References

47
Unit 3

Application of the
Namibian Bill of Rights
Introduction

The rights and freedoms guaranteed in the Namibian Constitution are contained in
Chapter 3. Chapter 3 is referred to as the Namibian Bill of rights.

Once a right and freedom have been given legal protection, a number of questions
arise. These include: in which kinds of dispute does the Bill of Rights afford
protection? Who are the persons who enjoy the protection of the right? Who are the
persons who have the correlative duties/obligations? How must the wording used to
frame the right be interpreted to give effect to the right in question? Also, since no
right is absolute, to what extent may the protection of the right be limited in ordinary
times and in times of emergency?

The purpose of this unit is to answer these questions.

 distinguish between positive and negative claim and

liberty rights

 Identify the generations human rights

Outcomes
 discuss the subjects of human rights and the obligations
imposed

 recommend the elective remedies for human rights

violations

The Namibian Constitution, Chapter 3.

Govindjee, A (Ed.) et al. 2016. Introduction to human rights

Prescribed law, 2nd Edition, Durban: LexisNexis, pp. 39-68.
reading

48
 Human Rights Law

adequate: Sufficient or minimal requirement

pertaining: In relation to something

surpass: To exceed
Terminology
derogation: Temporary nullification of a right

3.1 Direct Application of the Bill of Rights

There are several issues which determine whether the Bill of Rights (BoR) will
apply directly. These include:

1. The right(s) at stake;

2. The beneficiaries of the right (rightsholders);

3. The duty bearers

3.1 State actors;

3.2 Non-state actors (NSAs);

4. The temporal application of the BoR;

5. Territorial application of the BoR;

6. Justiciability and locus standi; and

7. Jurisdiction

Each of these will be discussed in the next sections.

3.2 The right(s) at stake

This assessment is very important in Namibian, specifically, in the context of
ESC rights. The Namibian BoR does not contain most of the recognised ESC
rights. As such, the person who, for example may want to claim the rights to
adequate housing, or any other right which is not directly guaranteed in the
Namibia BoR will have to think innovatively to claim such a right. In such
instances, the utility of indivisibility of rights and article 144 of the Constitution
come in very handy. The value of article 144, for instance, was aptly demonstrated in
the Mwalima II case (paid a legal).

49
 Read the case of Government of The Republic of Namibia
And Others v Mwilima and all Other Accused in the Caprivi
Treason Trial 2002 Nr 235 (SC).
Activity
Refer to this and write an essay showing how a right not
directly guaranteed in Chapter 3 can nonetheless be claimed
in the Namibian legal order.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

It is also possible to claim a right not directly guaranteed in Chapter 3 by

invoking the principle indivisibility of rights. For instance, the rights to food, water,
proper sanitation, health and adequate housing are not guaranteed in Chapter 3.
Does this mean that these rights cannot be claimed at all in Namibia? Off course
not. Namibia signed up to international instruments guaranteeing these rights.
As such these rights are introduced into the Namibia legal order through article
144. Additionally, these rights can also be claimed through the indivisibility
principle. In such cases the strategy is to link the impugned right to one that is
expressly guaranteed in Charter 3.

The usefulness of the indivisibility principle to advance human rights was aptly
demonstrated by the African Commission on Human and Peoples Rights
(African Commission) in the SERAC case.

50
 Human Rights Law

Read the Communication 155/96 Social and Economic

Rights Action Center (SERAC) and Center for Economic and
Social Rights (CESR) v Nigeria
Activity
[Link] to this case to discuss how the African Commission
invoked the indivisibility principle to find that the Nigerian
Government violated the right to housing of the Ogoni people
even though this right was not expressly guaranteed
expressed in the African Charter.

2. Use the same argument of the African Commission i.e. the

indivisibility of rights to read for example, the rights to
adequate housing, proper sanitation or health into under
Chapter 3 of the Constitution.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

Also read the case of Shanti Star Builders v. Naryan Khimali

Tatome et al. to see how the Indian Supreme Court used the

Note it! indivisibility principle to read the right to adequate housing

into cases based on the right to life as guaranteed under
article 21 of the Indian Constitution.

3.3 Rights-holder and duty bearers

3.3.1 Rights-holders

Human rights are legal entitlements. Thus, if A has a legal right to something, it
presupposes that B has a corresponding legal duty to A to uphold that right. In
human rights parlance, A is referred to as the rights-holder and B the duty
bearer.

51
 Source: European Union.

Rights-holders may be natural persons, juristic persons or a group or class of

persons within the jurisdiction of the State. Importantly, not all rights necessarily
accrue to each and every right-holders. For example, the right to life is only
claimable by human beings and not juristic persons. There many other examples of
rights which only accrue to a certain class of people.

Scan Chapter 3 of the Namibian Constitution. Make a list of

the rights which accrue to:

Activity 1. Only natural persons;

2. To both natural and juristic persons;

3. To only citizens; and

4. To groups only.

52
 Human Rights Law

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

53
A beneficiary of a rights i.e. the rights-holder may at time times agree not to claim
the benefit of his/her right. In such a case we talk about the waiver of a right. To
waiver one’s right is different from a decision not to exercise a right. A person is not
likely deemed to have waived his or her rights. The onus to prove that someone
waived his/her right rest on the person alleging such a waiver. Such an allegation
must be proven on a on a balance of probabilities. This was clarified in Grobbelaar
& Another v Council of the Municipality of Walvis Bay 1997 NR 259 (HC) where the
Court stated:

“To succeed in such a defence the respondents had to allege and prove that,
when the alleged waiver took place, the first applicant had full knowledge of the
right which he decided to abandon; that the first applicant either expressly or by
necessary implication abandoned that right and that he conveyed his decision to
that effect to the first respondent.”

Read the following cases and answer the questions below:

1. Sasman v The Chairperson of the Internal Disciplinary

Activity Panel of the Windhoek International School (A
66/2013) [2013] NAHCMD 115 (04 April 2013);

2. Grobbelaar and Another v Council of the Municipality

of Walvis Bay and Another (A25/96) [1997] NAHC 1
(21 November 1997)

a) Which rights were alleged to have been waived in

each of the given cases?

b) How did the court decide the allegation of waiver in

each of the given cases?

c) Do you agree with the decisions? Why? Why not?

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

54
 Human Rights Law

3.3.2 Duty bearers

Article 5 of the Namibian Constitution provides that:

“The fundamental rights and freedoms enshrined in this Chapter shall be respected and
upheld by the Executive, Legislature and Judiciary and all organs of the Government and
its agencies and, where applicable to them, by all natural and legal persons in Namibia,
and shall be enforceable by the Courts in the manner hereinafter prescribed.
A careful reading of article 5 indicates that the Namibian Bill of Rights apply both
vertically and horizontally. The vertical application of the Bill of Rights deals with the
circumstances in the law and conduct of organs of state, and state-owned
enterprises (SOEs) may be challenged for being inconsistent with the Bill of Rights.
State actors include the executive, legislature, judiciary, all organs of the
Government such as ministries, offices and government agencies. All these entities
are obligated to refrain from violating the rights of the people in their various
dealings.
The horizontal application of the BoR, on the other hand, refers to circumstances in
in which the conduct of private individual and juristic persons may be attacked for
infringing the BoR. In such instance we talk about non-state actors (NSAs). NSAs
include parents, employers, trade unions, private schools, private hospitals, com
Article 5 further grants powers to the courts to remedy such infringements.

55
 Research Namibian case law for an instance where:

1. a law passed by Parliaments was declared

Activity unconstitutional for violating a fundamental right or
freedom;

2. conduct of a member of the executive was declared

unconstitutional for violating a fundamental right or
freedom;

3. conduct of a ministerial official was declared

unconstitutional for violating a fundamental right or
freedom;

4. conduct of a state-owned enterprise was declared

unconstitutional for violating a fundamental right or
freedom;

5. conduct of a judicial official was declared

unconstitutional for violating a fundamental right or
freedom;

6. conduct of a natural person was declared

unconstitutional for violating a fundamental right or
freedom;
7. conduct of a juristic person was declared
unconstitutional for violating a fundamental right or
freedom.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

56
 Human Rights Law

3.4 The temporal application of the BoR

The Namibian BoR does not apply retrospectively. Put differently, the BoR does
not reach backwards to invalidate actions taken under laws which were valid at
the time even if those laws were contrary to fundamental human rights. Similarly,
the Constitution cannot validate actions that were unlawful before its
commencement. In the sake vein, the Constitution cannot interfere with rights
that vested before it came into force.
The rule that the Constitution does not apply retrospectively affect challenges to
violations of human rights that occurred before the commencement of the
Constitution. This means that litigants can only seeks constitutional relief for
violation of human rights by conduct that occurred after the commencement of
the Namibian Constitution.
What about violations that occurred before the commencement of the
Constitution, but the effect thereof continues. The obvious example that comes
to mind is the issue of land dispossession which occurred during colonial times.
The legacy and effect of land dispossession very much continues and is obvious
for everyone to see. During colonial times indigenous communities were forcibly
dispossessed of their ancestral lands and territories by the different colonial
regimes in Namibia. In present day Namibia it is evidently clear that the
indigenous communities are landless whilst the descendants of the colonial
settlers are owning most of the fertile and productive land in the country (many
of which was taken from these communities). This begs the question: does the
non-retrospectivity-rule preclude indigenous communities from reclaiming their
ancestral lands and territories? This question was affirmatively answered by the
African Court on Human and Peoples Rights in the Ogiek case in 2017.

African Commission on Human and Peoples' Rights v.

Activity Republic of Kenya (Ogiek Case), Application No. 006/2012.

1. How did the African Court on Human and Peoples’

Rights circumvented the argument of non-
retrospectivity as raised by Kenya to rule in favour of
the restitution of the ancestral lands of the Ogiek
people in this case?

2. What value does this judgment hold for claims for

restoration of ancestral land in Namibia?

57
 This is a self-evaluation activity. You are strongly advised to
attempt it.

Feedback

3.5 Territorial application of the Bill of Rights

It goes without saying that the BoR, and by extension the Constitution, apply
throughout the national territory of Namibia. However, it is less obvious whether it
has any extra-territorial application. In other words, whether ‘the rights that national
have under the Constitution attach to them when they are outside the country, or
whether the state has an obligation under article 5 to respect and uphold the rights
in the BoR which extend beyond its borders. This issue has not yet been decided by
the Namibia superior courts. However, the decision of the South African Constitution
Court in the case of Kaunda v President of the Republic of South Africa holds great
persuasive value for Namibia in this regard.

Read the case of Kaunda v President of the Republic of

South Africa 2005 (4) SA 235 (CC).

Activity Use this case as a reference point and write short notes on
whether the Namibian students in China can invoke their
Chapter 3 rights to get the GRN to evacuate them from China
to escape the coronavirus.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

58
 Human Rights Law

3.6 Locus standi

Standing concerns whether someone who approaches the court is the appropriate
person to present the matter to the court for adjudication. Legal standing is a
mandatory prerequisite to judicial review. Standing refers to a litigant’s capacity to
bring a legal action before the court. In other words, standing relates to the
appropriateness of a party who seeks relief from the court. The rules of standing
thus determine whether an individual can approach the courts to vindicate his or her
right. The question of standing is decided at the very beginning of judicial
proceedings i.e. in limine. In other words, before the merits of the case are
considered.

It is worth noting that Namibia, unlike other countries such as South Africa,
Zimbabwe, Kenya, etc. still follows the common law rules of standing. The common
law requirements of standing are very narrow and restrictive. At common law the
applicant for review must be able to show a sufficient, personal and direct
interest in the case. Courts have recognised a few exceptions though as indicated
later below.

Article 25 governs standing in human rights violation challenges. In terms of this

article an aggrieved person must allege that his/her fundamental right or freedom as
guaranteed by the Constitution has been infringed or threatened. The inclusion of
‘threatened’ means that an applicant may also approach a court to obtain an
interdict to prevent a future violation of a right.

Read the case Tsumib v Government of the Republic of

Namibia (A 206/2015) [2019] NAHCMD 312 (28 August
2019).
Activity
1. Briefly summarise the facts of the case.

2. Who are the aggrieved parties in this matter?

3. How did the Court decide standing issue in this case?

4. Do you agree with the judgment? Why? Why not?

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 This is a self-evaluation activity. You are strongly advised to
attempt it.

Feedback

3.8 Jurisdiction

Jurisdiction is the power or competence of the court to adjudicate on, determine or

dispose of a matter. Magistrate courts, for instance, have no over constitutional
matters. It thus follows that magistrate courts do not have jurisdiction to declare a
law invalid. Jurisdiction in constitutional proceedings is related to the type of relief or
remedy that is sought by the litigant. In the case of human rights litigation, therefore,
one must first consider what remedies are sought by the litigant for an alleged
violation of a right. The court with jurisdiction to determine the matter will be the
court with the power to confer the remedy that is sought.

The recent cases involving the use of electronic voting machines (EVMs) in
Namibian elections best illustrate the importance of jurisdiction in BoR litigation
issues.

Refer to the Electoral Act (No.5 of 2014) and clarify the

jurisdiction of each of the following forums in election
challenge cases. Give examples from case law to
Activity substantiate your answer.

1. The Electoral Tribunal;

2. The Electoral Court; and

3. The Supreme Court.

This is a self-evaluation activity. You are strongly advised to

attempt it.

Feedback

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 Human Rights Law

Unit summary

In this unit you learned about the application of the Namibian

Bill of Rights. You have seen that that BoR may apply directly
or indirectly to a complaint of a human rights violation. You
have seen that the BoR apply directly when i) a right in the
Summary BoR has been infringed by; ii) a duty bearer (a state actor or
a non-state actor); during the period operation of the BoR; iv)
in the national territory. Where any of these elements is not
present the BoR will apply indirectly. This is so because the
law must be developed, interpreted and applied in a way that
conforms to the Bill of Rights.

References

Govindjee, A (Ed.) et al. 2016. Introduction to human rights

law, 2nd Edition.
References Currie, I and De Waal, J. 2014. The Bill of Rights Handbook.
Juta, 6th Edition

Rautenbach-Malherbe. 2012. Constitutional Law.

LexiNus:Johannesburg. 6th Edition.

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