Human Rights in Mauritius

History & Sources of Human Rights

Development of Human Rights

Political &
Religion based Philosophical Economic
thoughts Considerations
 Religion Based
 Five of the oldest sources of human rights may be listed as follows(not in
any hierarchical order):
 Hindu Vedas and Upanishads - Lukman Harees has observed that “Religion has always played a
central role in the protection of the human rights and especially in the promotion of human
dignity”

 Hinduism considers the Right of Happiness to be the highest fundamental right of all humans.
The ultimate goal for Hindusim is material and spiritual well-being of the mankind.

 A look at the e holy prayer of Hindus from time immemorial has been: Sarvepi Sukhinah Santu;
Sarve Santu Niramayah; Sarve Bhadrani Pashyantu; Ma Kaschid Dukhabhag Bhavet [translated it
means: Let all be happy Let all be free from diseases Let all see auspicious things Let nobody
suffer from grief].
 Religion Based[Contd]
 Christianity – Declaration of Independence has a passage reading: “We
hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.”
 The use of theistic language makes us think about the closeness of
Christianity and human rights.
 The Bible advocates the idea that ‘all men are endowed by their Creator
with certain inalienable Rights’. Eg;- Every person has the right to be treated fairly and
justly; Every person has the right not to be physically abused; No person, male or female, may be
deprived of their life without due process of the law. Every person should be treated impartially
before the law.
 Religion Based [Contd]
 The Quran and human rights - Dr. Riffat Hassan believes “ that the Qur’an is
the Magna Carta of Muslims” as it ‘affirms the fundamental rights that all
human beings possess”.
 Examples of the rights protected in the Quran – “The first and most basic right
emphasized by the Quran is the right to be regarded in a way that reflects the
sanctity and absolute value of each human life. Each person has the right not
only to life but also to respect, not by virtue of being a man or a woman, but by
virtue of being a human being”
 The Qur'an recognizes the right to religious freedom not only in the case of
other believers in God, but also in the case of non-believers in God. [Surah 6:
Al-An'am: 108] states:
 ‘Revile not ye those whom they call upon besides God, lest they out of spite revile God in their
ignorance. Thus have We made alluring to each people its own doings. In the end will they return to their
Lord, and We shall then tell them the truth of all that they did’.
 Religion Based Contd.
 Buddhism and human rights - ‘All human beings, according to Buddhism
are equal, and Buddhist concepts recognize the inherent dignity and the
equal inalienable rights of all human beings’.

 The same idea reverberates in the Universal Declaration of Human Rights

1948.
 Buddhism is associated with the pursuit of peace and happiness, morality
and ethics. International human rights conventions or texts have the same
goals but defined in different contexts.
 Buddhism subscribes the document ‘Declaration Toward A Global Ethic’
that was endorsed by leaders of many religions at the Parliament of the
World’s Religions, held in Chicago in 1993.
 Religion Based [Contd]

 Confucianism - more of a social and political philosophy than a religion

 Confucianism is considered as a basic ethical concept of Chinese social
political relations.
 It attaches importance to the fulfilment of the duty to one’s neighbour,
rather than the claiming of rights.
 The idea that Confucianism and human rights are incompatible needs to be
carefully examined. Human rights as “the common language of humanity,”
forms the crux of human rights conventions.
 The UDHR rights have been broadened and strengthened by governments,
nongovernmental organizations, and conscientious citizens throughout the
world for almost half a century since 1948. The Confucian philosophy or
teachings support strongly the visions and aspirations formulated in the
 Human rights & philosophy

 From philosophical and theorists point of view two camps emerge as regard
classification of human rights – Moral human rights and Legal human rights.
 ‘Moral human rights’ has a close nexus with culture and religion. While
morality is universal in all religions, there can be divergent perceptions of
what is right and what is not wrong according to each religion or religious
belief and practice.
 Morality considers rights as inborn or inhered in human. Rights such as right
to life, right to food and right to be free are morally acclaimed and legally
protected.
 Legal human rights are inextricably related to legal rights. Legal human rights
legitimize, in some sense moral human rights.
 Human rights & philosophy

 Western philosophers (Aristotle, Thomas Aquinas, Hugo Grotius) consider

human rights as a product of natural law.
 Jeremy Bentham, a political thinker, reformer, philosopher Views natural rights
(now called human rights) as ‘simple nonsense’. As a positivist (also John Austin)
he dissociates law from morality. He morality can be subjective and divisible. It
does not fit in with multiculturalism. Whereas a law from a sovereign (legislator)
is backed by sanctions it is generally obeyed. Natural rights lack the element of
sanctions and therefore considered as positive morality.
 Political philosophers in the like John Locke, Montesquieu, Mills, Dicey explain
human rights from legal perspectives. Human rights have a legal foundations in
the form of laws or rule derived from a superior document or a superior body that
has power to make laws or to command.
 Historical events shaping Human rights today!
 1215 – Magna Carta – protection from arbitrary power, arrest, respect of
right to freedom
 1648 – Treaty of Westphalia – recognition of statehood
 1689 – English Bill of Rights – right of citizens according to their beliefs
 1776 – Declaration of Independence, United States- Decolonization
 1787 – United States Constitution
 1789 – French Declaration on the Rights of Man and the Citizen, France.
 1791 – United States Bill of Rights
 1919 – League of Nations Covenant, International Labour Organization -
First international organization which collapsed in 1934.
Historical events shaping Human rights
today!
 1926 – Slavery Convention
 1945 – United Nations Charter, creation of United Nations Organization.
 1948 - 1966
International Bill of Rights

UDHR ICCPR & Protocols ICESCR

 Rise of Statehood – Montevideo Convention on Statehood 1931

 Attributes of human right

 Universality of human rights

 Some rights considered as fundamental, inalienable
 Human right is interdependent and indivisible
 Based on equality and non- discrimination
 Entails both rights and obligations [negative and positive rights]
 Sates assume obligations and duties (negative)
 Individuals enjoy rights (positive)
 Concept also concerns & caters for; future generations, intellectual property rights, environment
protection, animals.
 Enforcement of Human Rights [International]
 At UN level – International law can only be enforced in the spirit of
sincere cooperation and general acceptance of it.
 Special bodies established under the UN system:
1) Human Rights Committee;
2) Group of Three members of the Commission who are also
representatives of States parties to the International Convention on the
Suppression and Punishment of the Crime of Apartheid.
3) the Committee under ECOSOC;
4) The Committee established under CERD;
5) the Committee under CAT;
6) the Committee under CEDAW; and
7) the Committee under CRC.
Economic, social and cultural rights
 Categorization of Human Rights

 Karel Vasek categorized human rights into three generations.

1 - Associated with emancipation movement, rights that are fundamental
[right to life, right to privacy, non- discrimination].
2 - Economic, social and cultural rights [ considered as red rights or
positive rights].
3 – Progressive rights or solidarity rights. [ Right to development , right to
clean environment].
4 - Adrian Vasile Cornescu includes “rights related to genetic
engineering”, ‘right of future generations’ and “rights deriving from
exploration and exploitation of cosmic space” in the category of fourth
generation of rights.
 The ICESCR at a glance
 The ICESCR adopted by GAR 2200 A (XXI) of 16 December 1966. Nearly all members
of the United Nations are party to the Covenant.
 Rights covered under International Covenant on Economic, Social and Cultural Rights
(a) right of self-determination;
(b) Right to own and dispose of one’s property without interference;
(c) Right to work (Article 6);
(d) Right to form trade unions (Article 8);
(e) right to social security (Article 9)
(f) right of everyone to education for the full development of the human
personality (Article13);
(g) right to take part in cultural life and to enjoy the benefits of scientific progress
and its applications (Article 15)
 Obligations under the ICESCR
 Article 16 of ICESCR - member states to report on “the measures which they have
adopted and the progress made in achieving the observance of the rights recognized”
therein.
 Article 17 requires States Parties to furnish their reports in stages, in accordance with a
programme to be established by the Economic and Social Council.
 The Optional Protocol to the ICESCR - individuals and groups of individuals may
bring complaint against their own state for violation of any of the provisions of the
Covenant subject to the main proviso that they should exhaust all local remedies.
 Mauritius & ICESCR

 Mauritius acceded to the Covenant on 12 December 1973. Since its accession

it has submitted five periodic reports to the Committee on Economic, Social
and Cultural Rights. The fifth periodic report was considered by the
Committee at its 14th and 15th meetings held on 26 and 27 February 2019.
 Optional Protocol was added to the International Covenant on Economic,
Social and Cultural Rights in 2008. As of 2018 it has 45 signatories and 24
state parties. Mauritius is not a party to the Protocol.
 Former Chief justice Pillay served the Committee on Economic, Social and
Cultural Rights from 1998 to 2012.
 As of 1 January 2019, Hon Asraf Ally Caunhye (Senior Puisne Judge) is a
member of the Committee in his personal capacity.
 Fifth periodic report of Mauritius under ICESCR
 Mauritius submitted its 5th Periodic Report to the Committee in 2019. The
Committee made several observation on the report, among which are:
(a) It welcomed the Advisory Opinion on the Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965, affirming the right
to self-determination of the Chagos Archipelago on the basis, inter alia, of article 1
of the Covenant.
(b) Welcomed the legislative, institutional and policy measures taken by the
State party to enhance the level of protection of economic, social and cultural
rights in the State party, and noted, in particular, the adoption of the Marshall
Plan Against Poverty in 2016 and the announcement in 2019 of free tertiary public
education.
(c) It reiterated its concern over Mauritius not fully applying the covenant in
its domestic legislation.
The International Covenant on Civil and
Political Rights [ICCPR]
 The ICCPR is a different breed of legal animal in so far as it distinguishes
itself from other covenants.
 The Covenant imposes an obligation on contracting parties to undertake
“to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status”.
 Among other treaties, the ICCPR gives legal force to the UDHR (which
is only a declaration).
 State compliance with the Covenant is monitored through a reporting
system (submitted to the Human Rights Committee).
 The Human Rights Committee
 Article 28 of ICCPR establishes the Human Rights Committee. It is
composed of 18 members elected in their personal capacity (independent
experts).
 It examines the report submitted by member states on how the rights
under ICCPR are implemented.
 The Committee may also consider inter-state complaints.
 Article 1 of the First Optional Protocol to the ICCPR allows individuals to
bring complaints with regard to alleged violation of the rights under the
Covenant against their own state.
 Individuals must exhaust all available domestic remedies before
submitting a written communication to the Committee. (Article2) .
 Rights protected under ICCPR
 Article 6 – Right to life.; Article 7 – Freedom from torture. Article 8 –
Right to not be enslaved. Article 9 – Right to liberty and security of the
person. Article 12 – Freedom of movement and choice of residence for
lawful residents. Article 14 – Equality before the courts and tribunals.
Right to a fair trial. Article 15 – No one can be guilty of an act of a
criminal offence which did not constitute a criminal offence.
 Article 16 – Right to recognition as a person before the law. Article 17 –
Freedom from arbitrary or unlawful interference. Article 18 – Right to
freedom of thought, conscience and religion. Article 19 – Right to hold
opinions without interference. Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
 Article 26 – Equality before the law.
 The Human Rights Council
 The Human Rights Council (an inter-governmental body) was created in 2006 to
replace the much criticized the UN Commission on Human Rights.
 It is composed of 47 UN member states elected by the General Assembly on a
geographical representation basis as follows: Africa: 13 seats; Asia-Pacific: 13
seats Latin America and Caribbean: 8 seats; Western Europe and other :7 seats &
Eastern Europe: 6 seats.
 The current members include: Afghanistan, Bangladesh, China, Cuba, DRC, Fiji,
Iraq, Pakistan, Saudi Arabia, Somalia( What about their human rights record?)
 The HRC has a Complaint Procedure, which is a victims’- oriented process
addressing “consistent patterns of gross and reliably attested human rights
violations occurring in any part of the world and under any circumstances”.
 Individuals, groups or NGOs can address complaints to the HRC.
Communication by individual Mauritian
citizens against Mtius.

 Narrain et al. v. Mauritius . Reference: CCPR/C/105/D/1744/2007

 Hussain v. Mauritius. Reference: CCPR/C/77/D/980/2001

 Gobin v. Mauritius. Reference: CCPR/C/72/D/787/1997

 Poongavanam v. Mauritius. Reference: CCPR/C/51/D/567/1993

 L.G. v. Mauritius. Reference: CCPR/C/40/D/354/1989

 Aumeeruddy-Cziffra et al v Mauritius. Reference: CCPR/C/12/D/35/1978

Communication -Shirin Aumeeruddy-Cziffra
and 19 other Mauritian women
 Issue – Mtius Immigration (Amendment) Act 1977 alleged
discriminatory against women. Breach of Articles articles 2, 3, 4,
17, 23, 25 and 26 of the International Covenant on Civil and
Political Rights. [ All domestic remedies exhausted].
 The Committee concluded that Mauritius should adjust the
provisions of the Immigration (Amendment) Act, 1977 and of
the Deportation (Amendment) Act, 1977 in order to implement
its obligations under the Covenant and provide immediate
remedies for the victims of the violations of the above.
 Act subsequently amended accordingly.
 Communication No. 787/1997. Mr. Vishwadeo Gobin

 Issue: The author claimed that the constitutional provision of Mtius according to
which he had to be part of the “appropriate community” in order to be granted a seat
of “best loser” was discriminatory because the criteria on which the decision is taken
are based on race and religion.
 The said provision is thus contrary to article 26 of the International Convention on
Civil and Political Rights.
 Mtius argued Gobin had not exhausted all domestic remedies because he did not use
his right under section 17 of the Constitution to apply to the Supreme Court in a
discrimination matter protected by section 16 of the Constitution
 Mtius also contended that no Court of law in Mauritius can rule against the
Constitution, the supreme law of the land.
 Committee decided that that the communication is inadmissible under article 3 of the
Optional Protocol.
 L.G. v. Mauritius. Reference: CCPR/C/40/D/354/1989

 Facts: Author a Mauritian citizen and former barrister, claimed to be the victim of a
violation of articles 1, 2, 3, 14, 15 and 26 of the ICCPR by Mauritius. He was arrested in
connection with the possession of parts of the proceeds from a robbery at a casino,
perpetrated on the night of 21 January 1979. In fact he had received the sums from his
client He claimed he was framed by the police, who were in exclusive charge of the
investigation related to the robbery.
 Issue: whether the communication is admissible under the Optional Protocol to the
Covenant.
 The Committee decided to reject his claim as he failed to apply for judicial review of the
Chief Justice's decision of 17 November 1989. No issue under article 14 of the Covenant
arose and therefore his claim was held incompatible with the provisions of the
Covenant within the meaning of article 3 of the Optional Protocol
Poongavanam v. Mauritius. Reference: CCPR/C/51/D/567/1993

 Facts: Ponsamy Poongavanam was detained in prison following conviction

for murder. He claimed to be a victim of violations by Mauritius of articles 2,
3, 14, 25(c) and 26 of the International Covenant on Civil and Political Rights.
He challenged the compatibility with the Covenant of Section 42(2) of the
Courts Act and Section 2 of the Jury Act (as they applied prior to 1990).
 The Committee decided that the communication was inadmissible under
articles 1, 2 and 3 of the Optional Protocol as it was for the appellate courts
and not for the Committee to evaluate facts and evidence placed before the
domestic courts. Also, it was for the appellate courts and not for the
Committee to review instructions to the jury by the judge, unless it is
apparent that these instructions were clearly arbitrary or amounted to a
denial of justice, or that the judge otherwise violated his obligation of
impartiality.
 Hussain v. Mauritius. Reference: CCPR/C/77/D/980/2001

 Fazal Hussain, an Indian citizen serving a prison term in Mauritius

claimed to be a victim of a violation by Mauritius of article 14, paragraph
3 (b), (c) and (d), paragraph 5 and paragraph 6 of the ICCPR. He was
charged with and convicted for importation and trafficking in heroines.
 Mauritius objected to the admissibility on the grounds that Hussain failed
to exhaust all available domestic remedies. Moreover, he was entitled to
apply to the Commission on the Prerogative of Mercy for a review of the
punishment imposed by the Supreme Court.
 The Committee held that the communication was inadmissible for failure
to exhaust domestic remedies under article 5, paragraph 2 of the Optional
Protocol.
 Narrain et al. v. Mauritius . Reference CCPR/C/105/D/1744/2007

 The authors claimed that regulation 12, paragraph 5, of the National

Assembly Elections Regulations 1968, to the extent that it invalidates the
nomination of a candidate to a general election who does not declare to
which of the Hindu, Muslim, Sino-Mauritian or General Population
communities he allegedly belongs, violated article 25 of the Covenant.
 Mtius requested that the admissibility of the communication be considered
separately from the merits. In fact the candidates were not prevented from
standing as candidates. Moreover, they did not exhaust all local remedies
available.
 The Committee found that the communication was inadmissible but on the
merits it found that the allegation of violation breached section 25(2) of
ICCPR. {Mtius was given 180 days from the date of the decision to take
measures to address the issue].
 Narrain et al. v. Mauritius . Reference
CCPR/C/105/D/1744/2007
 Some observations on the case.
 (1) The decision of the Committee does not attract unanimity from the political leaders
in Mauritius. Some have claimed that the request by the Committee does not reflect the
real situation and affinities of the island.
 (2) Despite the change in law prospective candidates have the discretion whether or not
to mention their ethnicity.
 (3) The best Loser system in inextricably linked with declaration of ethnicity. To change
it would create a constitutional quagmire.
 (4) Experts sitting in Geneva and not knowing the history of Mauritius cannot be given
the freeway to dictate what is good and bad for Mauritius. They are like hunters
shooting in the dark.
 (5) The paradox about the recommendation of the Committee is with regard to the
provisions in most of the human rights conventions regarding protection of minorities.
The Committee might as well decide whether the term minority and its protection
should still be the major concern of the international human rights instruments.
Human Rights in Mtius
Where to find the protection for human rights in Mtius?
 (1) The Code Civil Mauricien - predates the Constitution - describes the
civil rights that citizens of Mauritius enjoy and the obligations of the state
to guarantee those rights and freedom without discrimination.
 The following Articles of the CCM are pertinent as regard protection and
promotion of human rights in Mauritius. [Articles 11,12,13,14,15, 22].
 (2) The Constitution of Mtius - Chapter II of the Constitution based on
the ECHR.
 (3) International conventions on human rights [International Bill of rights].
 (4) Regional treaties on human rights.
 (5) The International Labour organization
 Code Civil Mauricien
 11. On ne peut renoncer à la jouissance de ses droits civils et de ses libertés
fondamentales.
 12. Tout Mauricien jouira des droits civils.
 13. L'étranger jouira à Maurice des mêmes droits civils que ceux qui sont ou
seront accordés aux Mauriciens par les traités de la nation à laquelle cet
étranger appartiendra.
 14. Sous réserve des dispositions expresses de la loi, tout Mauricien majeur a
le plein exercice de ses droits civils.
 15. De même, toute personne morale, régie par la loi mauricienne a le plein
exercice de ses droits civils, sauf ce qui est propre à la personne humaine. Les
dispositions de la loi relatives à l'exercice des droits civils par les personnes
humaines sont, autant que faire se peut, applicables aux personnes morales
 Code Civil Mauricien
22. Chacun a droit au respect de sa vie privée.
Les juridictions compétentes peuvent, sans préjudice de la réparation du
dommage subi, prescrire toutes mesures, telles que séquestre, saisie et
autres, propres à empêcher ou faire cesser une atteinte à l'intimité de la vie
privée.
 See Payet v Seagull Insurance Co. Ltd & Ors[1990] - The Court observed that
“One cannot think of a case where the protections of fundamental rights and
freedoms of the individual can be more sacrosanct than where the protection
relates to the body of the individual”. It came to the conclusion that “in a civil
case, it would be inappropriate to compel a person to submit himself to a medical
examination, in any circumstances which does not meet his will”.
 Constitution of Mauritius & human rights
 The Constitution of Mauritius mentions in its first section that Mauritius
‘shall be a democratic State’.
 The observation of the Supreme Court in Vallet v Ramgoolam [1973 MR
29], “Actually the idea of a democratic form of government which it
proclaims as concretized by those other provisions of the Constitution
which create and regulate the essential components of democracy”
 Lincoln & Ors v Governor- General & Ors[1974 MR 12] – the Supreme
Court concurred with the views expressed in Vallet. ‘Our Constitution-
makers had intended to bestow upon our people a form of democracy
akin to the British democracy’.
 Judge Ramphul observed ‘One must not go outside the Constitution to
discover the form of democracy which obtains in Mauritius’.
 Constitution of Mauritius & Human rights

 Meaning of democracy - In the broad sense, democracy is a

political system which has the collection of attributes found in
many countries, including Mauritius. Eg: popular election of
governments; an independent judiciary; the rule of law;
respect for individual rights; apolitical armed forces;
 In its narrow sense, democracy means only the appointment
of government by popular election. Lord Hailsham coins it as
‘elective dictatorship’.
 Constitution of Mauritius & Human rights

 Ahnee v DPP[1999] - the Privy Council gave an overview of the

democratic form obtained in Mauritius; ‘From these provisions the
following propositions can be deduced, First, Mauritius is a democratic
state constitutionally based on the rule of law. Secondly, subject to its
specific provisions, the Constitution entrenches the principle of the
separation of powers between its legislature, the executive, and the
judiciary. Thirdly, the Constitution gave to each arm of government such
power and duty that the judiciary must as an integral part of its
constitutional function have the power and duty to enforce its orders and
to protect the administration of justice against contempt which are
calculated to undermine it.
 Constitution of Mauritius & Human rights
 In State v Khoyratty [2006, UKPC], the Privy Council stated that the
term ‘democratic state’ includes the following components: “the people
must decide who should govern them. Secondly, there is the principle
that fundamental rights should be protected by an impartial and
independent judiciary. Thirdly, in order to achieve a reconciliation
between the inevitable tensions between these ideas, a separation of
powers between the legislature, the executive and the judiciary is
necessary”.
 Chapter II of the Constitution of Mauritius guarantees protection of
fundamental rights and freedoms of the individual.
 Section 3 reads: ”It is hereby recognised and declared that in Mauritius
there have existed and shall continue to exist without discrimination”.
 Means to address discrimination

 Section 16 of the Constitution states: “no law shall make any provision that
is discriminatory either of itself or in its effect”. In the first instance there
should not be any law that is discriminatory, and secondly discrimination
by a person acting in the performance of any public function is prohibited.
These two situations provide double assurance to the public as regard
protection from discrimination.
 The word “discrimination” is constitutionally defined as: “affording
different treatment to different persons attributable wholly or mainly to
their respective descriptions by race, caste, place of origin, political
opinions, colour, creed or sex whereby persons of one such description are
subjected to disabilities or restrictions to which persons of another such
description are not made subject or are accorded privileges or advantages
that are not accorded to persons of another such description”.
 Enforcement of protective provisions
 Section 17 (1) “Where any person alleges that any of sections 3 to 16 has
been, is being likely to be contravened in relation to him, then, without
prejudice to any other action with respect to the same matter that is lawfully
available, that person may apply to the Supreme Court for redress”.
 The Supreme Court cannot exercise its powers granted under section 17 if it
is “satisfied that adequate means of redress for the contravention alleged
are or have been available to the person concerned under any other law”.
 Redress under section 17 is exclusively in respect of rights set out in sections
3 to 16. This was made clear in D. Matadeen and another (Appellants) V.
M.G.C. Pointu and Others (Respondents) & the Minister of Education
and Science and Anor (Co-Respondents).
Powers of the Supreme Court over constitutional matters

 Section 83 confers on the Supreme Court jurisdiction over constitutional

matters. “Where any person alleges that any provision of this Constitution
(other than Chapter II) has been contravened and that his interests are being or
are likely to be affected by such contravention, then, without prejudice to any
other action with respect to the same matter which is lawfully available, that
person may apply to the Supreme Court for a declaration and for relief under this
section”.
 There is no need for exhaustion of remedies provision for any action
under section 83. The aggrieved party must be precise as to which section
of the constitution provision has been breached or likely to be breached.
 Human rights under ECSCR & Mauritius
 A bird’s eye view of the fifth periodic report submitted by Mauritius in 2019
reveals the following.
 New legislations enacted to give effect to the Covenant They include: The
Combating of Trafficking in Persons Act 2009, the International Criminal Court
Act 2012, the Equal Opportunities Act 2012, the Protection of Human Rights
(Amendment) Ac 2012, Police Complaints Act 2012, the National Preventive
Mechanism Act of 2012; Legal Aid and Legal Assistance Act 2012, The Criminal
Procedure (Amendment)Act 2007, the Judicial and Legal Provisions Act 2018
 Three main Commissions have established to enhance the existing legal and
administrative infrastructure to better guarantee citizens their human rights as
defined in the ICESCR and ICCPR. These Commissions are; 1) the National
Human Right Commission [NHRC], 2) Office of the Ombudsperson for
children, and 3) the Equal Opportunities Commission.
 Human rights under ICCPR & Mtius
 The First periodic report submitted in 1978, mentioned that “Mauritius did not
find it necessary to give the force of law specifically to the International
Covenant on Civil and Political Eights as the substance of the Covenant is
already contained, either in the Constitution or in a number of specific
enactments dealing with the rights concerned”.
 The fifth periodic report to the Human Rights Committee was submitted in
2017. the Committee welcomed the legislative, institutional and policy
measures.
 Among the recent enactments giving effect to the ICCPR include: The Police
Complaints Act, in 2013; The Equal Opportunities Act, in 2012; The Protection of
Human Rights (Amendment Act), in 2012; The International Criminal Court Act,
in 2012; The Legal Aid and Legal Assistance Act, in 2012; The National
Preventive Mechanism Act, in 2012; The Institute for Judicial and Legal Studies
Act, in 2011; The Combating of Trafficking in Persons Act, in 2009.
Human rights & Women
 No - discrimination against women

 Gender equality is not new to the vocabulary of human rights. All

religions give due respect to women and acknowledge their right to be
treated equal to men .
 The UDHR condemns any discrimination based on sex or gender.
Article 7 reads: “All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration and
against any incitement to such discrimination”.
 CEDAW deals exclusively with rights of women and prohibits all kinds
of discrimination based on gender.
 Article 15 – according to women equality with men before the law
 Women's rights under CEDAW
 Meaning of discrimination against women in Article 1 of CEDAW: “any
distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by
women irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field”.
 Article 2 calls upon to condemn discrimination against women in all forms
and adopt laws that promote equality between men and women.
 Article 5 enjoins state parties to “modify the social and cultural patterns of
conduct of men and women, with a view to achieving the elimination of prejudices
and customary and all other practices which are based on the idea of the inferiority
or the superiority of either of the sexes or on stereotyped roles for men and women”.
 Obligations of state parties under CEDAW
 Article 5 (b) – to adopt a “family education” that ‘includes a proper
understanding of maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development of their
children’.
 Eliminate discrimination against women in the political and public life of the
country (Art 7); ‘ensure equal rights with men in the field of education (Art
10); in the field of employment (Art 11); in the field of health care (Art 12); in
areas of economic and social life (Art 13).
 The Convention emphasizes the significant role of rural women. It obliges
state parties to take appropriate measures with a view to eliminating
discrimination and ensuring, on a basis of equality of men and women, that
women participate in and benefit from rural development and, in particular,
shall ensure to such women the right (Art14).
Committee on the Elimination of Discrimination against
Women

 Article 17 establishes the ‘Committee’.

 Art 18 - State Parties must submit to the Secretary General of UN periodic
report ‘on the legislative, judicial, administrative or other measures which
they have adopted to give effect to the provisions of the Convention and
on the progress made in this respect’.
 The Optional Protocol to CEDAW was adopted in 2000. A State Party to
the Protocol recognizes the competence of the Committee to receive and
consider communications submitted in accordance with article2.
 Communications may be submitted by or on behalf of individuals or
groups of individuals, under the jurisdiction of a State Part.
 Mauritius & CEDAW

 Mauritius is a state Party to the Convention as well as to its Optional

Protocol, which it ratified in 2008.
 Mauritius submitted its eighth Periodic report to the CEDAW Committee
in October 2018.
 The Committee considered the report (CEDAW/C/MUS/8) and made the
following observations: welcomed the progress achieved by Mauritius in
the field of elimination of discrimination against women; particularly the
adoption of legislative acts and administrative measures (mentioned in
Part B of the concluding observations).
Elimination of discrimination against women &
regional treaties

 African Charter on Human and Peoples’ Rights – Art 1 guarantees “every

individual the enjoyment of the rights and freedoms without distinction of
any kind such as race, ethnic group, colour, sex, language, religion, political
or any other opinion, national and social origin, fortune, birth or other
status”.
 Article 3 confirms what is already established in CEDAW – equality before
the law & entitlement to equal protection of the law.
 International Labour Organization mandate to promote gender equality in
the world of work is enshrined in its Constitution. It has four key gender
equality Conventions - a) the Equal Remuneration Convention (No. 100), b)
Discrimination (Employment and Occupation) Convention (No. 111 ), c)
Workers with Family Responsibilities Convention (No. 156 ) and d)
Maternity Protection Convention (No. 183 ).
Southern African Development Community and
women’s rights

 The Southern African Development Community Treaty provides for non-

recognizes the need for gender equality and protection of women against
all kinds of discrimination. It is a general undertaking by member States
not to discriminate against any person on grounds of gender, religion,
political views, race, ethnic origin, culture or disability[Art 6(2)].
 The SADC Protocol on Gender and Development is a comprehensive
bouquet of recommendations and action to be enforced by and in
Member States.
 Article 1 comes with definitions of gender and forms of gender
discrimination [gender equality, gender equity, gender mainstreaming
gender sensitive, gender stereotypes, gender based violence],
 SADC Protocol on Gender & Development

 The objectives of the Protocol are mentioned in Article 3 as ‘to provide for
the empowerment of women, to eliminate discrimination and to achieve
gender equality and equity through the development and implementation
of gender responsive legislation, policies, programmes and projects.
 It calls upon Member Stares to: adopt affirmative action measures with
particular reference to women (Art 5), abolish the minority status of
women (Art 6), ensure the practical realization of equality of women (Art
7), equal access to education at all levels (Art 14), equal participation of
women and men in policy formulation and implementation of economic
policies (Art 15), adopt and implement legislative frameworks, policies,
programmes and services to enhance gender sensitive, appropriate and
affordable quality healthcare (Art 26).
Towards the elimination of discrimination against women in Mauritius

 Constitutional guarantee under section 3 – recognizes and declares that

there shall be no discrimination by reason of race, place of origin.
Political opinions, colour, creed or sex in Mauritius.
 Article s11 & 12 of the Code Civil Mauricien – 11. On ne peut renoncer
à la jouissance de ses droits civils et de ses libertés fondamentales. 12.
Tout Mauricien jouira des droits civils.
 Mauritius has ratified the following ILO conventions – Equal
Remuneration Convention 1951 C 100 (Dec 2002); Discrimination
(Employment and Occupation) Convention 1958 (No. 111); Workers
with Family Responsibilities Convention (No. 156 ) & Maternity
Protection Convention (No. 183 ) [ratified in June 2019 and will enter
into force in 2020.
 Towards the elimination of discrimination against women in Mauritius

 The Protection from Sex Discrimination Act 2002 is a comprehensive Act

which addresses both direct and indirect discrimination against women.
 The protection from Domestic Violence Act 1997 (amended in 2004),
includes gender –based violence in the definition of discrimination.
 The Education Act (amended in 2005), increased the age of free,
compulsory education to 16 years.
 Amendments brought to the Constitution in 1995 [ Subsection 3 of section
16 of the Constitution, which includes ‘sex’ as a prohibited ground of
discrimination.
 National Women’s Council Act[1985] - implementing and coordinating
activities to promote integration of women in development.
Towards the elimination of discrimination against
women in Mauritius

 The Equal Opportunities Act (2012) prohibits direct and indirect

discrimination on the basis of sex.
 Setting up of a National Steering Committee on Gender Mainstreaming
in July 2010 and the appointment of ministerial Gender Focal Points in
2017 on a pilot basis.
 The Local Governance Act of 2011 [Sections 11 (6) and 12 (6)] provides
for gender-neutral quotas, in increasing women’s representation in local
governance.
 Guidelines for Employers issued in April 2013 under section 27 (3) (f) of
the Equal Opportunities Act on the development and application of an
equal opportunity policy by each employer that employs more than 10
people.
Actions towards the elimination of discrimination
against women in Mauritius

 Criminal Code (Amendment) Act of 19 June 2012 - amended

Art 235 of the Criminal Code & introduced Article 235A,
which legalizes abortion in specified circumstances.
 The Employment Rights (Amendment) Act 2015 extends the
duration of maternity leave from 12 to 14 weeks. The Act is in
line with the ILO Maternity Protection Convention 2000.
 Discrimination still prevails

 World Economic Forum’s Global Gender Gap Report 2018 ranks Mauritius at
109 out of 149 countries.
 Only eight women MPs out of 71 members in the 2014 General election. [Two
ministers out of 27 are women].
 Average income is lower for women than men, with an average of Rs16,800
against Rs22,300 per month in 2017.
 “Section 16(4) (c) of the Constitution together with the de-facto repeal of
sections 228-1 to 228-10 of the Civil Code (1808), leave women in unregistered
Muslim marriages unprotected, without effective means of safeguarding their
marital rights, including property, inheritance, recognition and custody of
children, and no forum in which they can claim these rights; and allows for the
persistence of informal polygamous and child marriages” [ CEDAW
Committee report Nov 2018].
Human rights, Child welfare and Regulatory
Institutions
 Who is a child?
 Meaning of ‘child’ – CRC- a child means every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier.
 The Interpretation and General Clauses Act 1974 – a “child” means any unmarried
person under the age of 18.
 The Child Protection Act 1994 – a “child” means any unmarried person under the age
of 18.
 The Social Aid Act 1983 - “child”, in relation to a claimant, means (a) (i) an unmarried
person who is under the age of 20; (ii) an unmarried person of the age of 20 but not
above the age of 23, who is pursuing a full-time course at a tertiary education
institution.
 The Code Civil Mauricien – 388. Le mineur est l’individu de l’un ou de l’autre sexe
qui n’a point encore l’âge de dix huit ans accomplis. 476. Le mineur est émancipé de
plein droit par le mariage.
 Rights pertaining to children & family

 Mauritius is a party to-

 1) the Convention on the Rights of the Child;
 2) the African Charter on the Rights of the Child,
 3) the Hague Convention on the Civil Aspects of International Child
Abduction;
 4) the Optional Protocol to the Convention on the Rights of the Child;
 5) The Optional Protocol to the Convention on the Rights of the Child, on the
sale of children, child prostitution and child pornography;
 6) The Convention on the Rights of Persons with Disabilities;
 7( The Convention concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour.
 Rights pertaining to children & family

 National laws pertaining to the rights of children –

 1)The Child Protection Act(1994),
 2) The Human Rights Act (1998),
 3) the National Children’s Council Act (2004),
 4) The Ombudsperson for Children Act 2003,
 5) The Juvenile Offenders Act 1935
 Rights of the child under the Code Civil Mauricien
Administrative bodies for protection of children’s rights
 Child Development Unit Child Development Unit set up in 1995 within
the aegis of the Ministry of Gender Equality, Child Development and
Family Welfare. State has obligation to ensure parental role wherever
parents fail to do so.
 Office for the Ombudsperson for Children - ensure that the rights, needs
and interests of children are given full consideration by public bodies,
private authorities, individuals and associations of individuals.
 Foster homes under Child Protection Act.
 Child Mentoring Committee under Child Protection Act.
 National Children Council – set up in 1990 responsible for coordination of
all activities related to protection of children’s interests in line with the
CRC.
 Mauritius reporting obligations (CRC)

 The Committee on the Rights of the Child established under Art 43 of the
convention. It consists of eighteen experts of high moral standing and
recognized competence in the field covered by the Convention.
 State Parties must submit to the Committee reports on the measures
adopted to give effect to the rights recognized in the Convention.
 Mauritius submitted a combined third to fifth periodic report on its
implementation of the provisions of the Convention on the Rights of the
Child in 2013 [CRC/c/MUS/3-5].
 National Human Rights Action Plan is a tool to achieve the human rights
goals as provided in various international human rights treaties and
Declarations.
Africa & Human Rights
 African jurisprudence on human rights
 The African human rights system bears similarity to other regional human rights
mechanisms. The OAU (now AU) played a prominent role played by in
developing a treaty based human rights system throughout Africa.
 In 1981 the OAU adopted the African Charter on Human and Peoples’ Rights.
[The Banjul Charter].
 The Optional Protocol on the Establishment of an African Court on Human
Rights was agreed in 1998.
 The African Charter on the Rights and Welfare of the Child (1990)
 African Union Convention for the Protection and Assistance on Internally
Displaced Persons in Africa 2009
 The Protocol on Women's Rights (2005)
 The African Commission on Human and Peoples’ Rights [1987]
African Charter on Human and Peoples’ Rights.

 The Charter distinguishes itself from other human rights treaties in

many aspects.
 The Charter is divided into three parts – Part 1 deals with rights and
duties; Part 2 elaborates on measures to protect and promote those rights
mentioned in Part 1; Part 3 establishes general provisions concerning the
working of the African Commission on Human and Peoples' Rights
 It mentions ‘Peoples’’ rights [a collective noun]. It recognizes the
importance of collective rights of the citizens of member States. It should
not be interpreted as to recognize or encourage secessionist movements.
 Note that The Declaration on Friendly Relations likewise does not
authorize the impairment of the territorial integrity or national unity of a
sovereign State.
African Charter on Human and Peoples’ Rights

 The Declaration on Principles of International Law concerning Friendly

Relations and Co-operation among States in accordance with the Charter
of the United Nations was adopted by the General Assembly on 24
October 1970 (resolution 26/25 (XXV)).
 The Charter does not allow derogation from any of its Articles. The rights
and duties remain applicable even during times of emergency.
 Individuals and States have the duty individually or collectively, to
ensure the exercise of the right to development
 African Charter on Human and Peoples’ Rights.

 The Charter takes into consideration ‘the virtues of their (African states)
historical tradition and the values of African civilization which should inspire
and characterize their reflection on the concept of human and peoples’ rights’.
 Unlike the international Bill of rights the Charter notes the close affinity between
civil and political rights and the economic, social and cultural rights [an all
inclusive and holistic approach to human rights].

 The concept of duty as explained in the Preamble differs from the explanation
given in other regional treaties. It provides that "enjoyment of rights and
freedoms also implies the performance of duties on the part of everyone. " In
other regional human rights instruments the concept of "duties" refers only to
the obligation of a State toward its citizens or toward citizens of another State
coming within its jurisdiction.
 African Charter on Human and Peoples’ Rights.

 Article 20 addresses both political and economic self-determination. ‘All peoples

shall have the right to existence. They shall have the unquestionable and inalienable
right to self-determination. They shall freely determine their political status and shall
pursue their economic and social development according to the policy they have
freely chosen’.
 The Charter demarcates from other regional human rights treaties in some respects.
It condemns colonization and seeks to eliminate new forms of colonization. A theme
that is not included in other regional human rights treaties.
 Article 12(5) prohibits mass expulsion of national, racial, ethnic, or religious groups.
 The Charter consists of several peoples’ rights that are exercisable collectively. [right
to an existence, right to freely dispose of wealth and natural resources, right to
international peace and security].
The African Commission on Human and Peoples’ rights

 Created in 1987 as provided in Art 30 of the Banjul Charter, it is a body

of eleven independent experts, the Commission is tasked with the
promotion and protection of human and people's rights within the region.
 Art 45 lists out the mandate of the Commission - to promote Human and
Peoples' Rights; formulate and lay down the principles and rules aimed
at solving legal problems relating t human rights; cooperate with other
African and international institutions in matters concerning human rights;
interpret all the provisions of the Charter.
 The Commission meets twice a year. It receives report from contracting
states and inter- states complaints [Art 47] as well as individual
communications.
The African Commission on Human and Peoples’ rights

 Mauritius submitted its 6the to 8th Combined report under Article 62 of

the African Charter on Human and Peoples’ Rights in 2016.
 The Commission commended the efforts of Mauritius in fulfilling the
obligations user the African Charter and other international human
rights instruments. It recommended, inter alia, the abolition of Art 242
Criminal Code which is considered discriminatory against women. It
has recommended amendment to Art 16 (4) of the Constitution of
Mauritius which provides an exemption to the prohibition on
discrimination on personal status law.
 Art 242 CC - Manslaughter committed by any person on his spouse, as
well as on his accomplice, at the very moment he finds them in the act
of adultery is excusable.
 African Court on Human & Peoples’ Rights
 The Court is composed of eleven Judges, nationals of Member States of the
African Union elected in their individual capacity.
 Cases are to be submitted at the seat of the Court, which is at Arusha,
Tanzania. No statute of limitations applies as to when a matter can be
brought before the Court. The rules set no limits save for "a reasonable time
from the date local remedies were exhausted“.
 A submission can only be made in terms of Rule 33, in accordance with
Article 5 of the Protocol as read with Article 34 (6), by The Commission, State
Party before the Commission (either as Applicant or Respondent), State Party
whose citizen is a victim of a human rights violation, African
Intergovernmental Organization, An individual or NGO in terms of Article
34(6) of the Protocol. A State Party with an interest in a case may apply to be
allowed to join in, according to Rule 53.
Jurisdiction of the African Court on Human &
Peoples’ Rights

 As per provisions under the Protocol attached to the Banjul Charter.

 Extends to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any
other relevant Human Rights instrument ratified by the States
concerned.
 Court may provide an opinion on any legal matter relating to the
Charter or any other relevant human rights instruments.
 Judgment of the Court decided by majority shall be final and not
subject to appeal.
 Reasons is given for the judgment of the Court
 Case study on African human & Peoples’ Rights
 Alfred Agbesi Woyome v Republic of Ghana [Application No.
001/2017].
 Facts – Applicant (AAW) alleged that Ghana has violated his rights under
the African Charter. - Right to non –discrimination (Article 2); Right to
equality before the law and equal protection of the law (Article 3); and
Right to have one’s cause heard (Article 7). He also submitted that such
violations ought to be rectified pursuant to Article 27(1) of the Protocol to
the African Charter on Human and Peoples’ Rights on the Establishment
of an African Court on Human and Peoples’ Rights (the Protocol).
 The case concerned payments related to rehabilitation and construction
of stadia for the hosting of the 2008 Edition of the Africa Cup on Nations.
Case study on African human & Peoples’ Rights (Contd)

 Respondent [Ghana] raised four objections – Protocol not domesticated;

application does not raise human rights claims; that domestic courts have
jurisdiction over human rights matters; and that the African Court cannot
review decisions of the Supreme Court of Ghana.

 The Court unanimously held it had jurisdiction as the Protocol does not
require domestication (Art 3) only ratification is enough. Secondly, the
claims in the Application were based on alleged violations of provisions
of the Charter, namely Articles 2, 3 and 7. Third, the fact that the
Respondent State has procedures on addressing human rights issues at
national level does not prevent the Court from exercising material
jurisdiction {exhaustion of local remedies}.
Case study on African human & Peoples’ Rights
(Contd)

 Fourth, although the Court does not have the power to interpret the
Constitution of the Respondent State, it is however empowered to
examine judicial decisions or acts of any State or organs of the State,
where human rights violations have been alleged, including instances
involving constitutional issues to ensure that they comply with the
Charter.
 The Court declared the application admissible & unanimously found that
the Respondent State has not violated Article 2 of the Charter on the right
to non -discrimination; that the Respondent State has not violated Article
3 of the Charter on equality before the law and equal protection of the
law; that the Respondent State has not violated Article 7 (1) (a) of the
Charter on the right to have one’s cause heard by a competent tribunal.
Human rights & Health
 Do we have a right to health?
 The World Health Organization defines health as “a state of complete physical,
mental and social well-being and not merely the absence of disease or
infirmity”.
 According to the International Covenant on Economic, Social and Cultural
Rights the meaning of ‘right to health’ covers, inter alia, the following.
 (1) Entitlement to the equality of opportunity to enjoy a reasonable standard of
health
 (2) Easy access to public health and health-care facilities, good and services
regardless of citizenship status and without discrimination.
 (3) Health facilities should be acceptable to all taking into account medical ethics
and respect of confidentiality. Health care services should also be designed in
such a way that people receive treatment appropriate for their culture, gender
and stage of life.
 (4) A quality of health facilities that is scientifically and medically appropriate.
International & regional treaties asserting human rights to health
 
UDHR Article 25(1) – right to an adequate standard of living for self and family including food,
clothing, housing and medical care; necessary social services and social security.
ICESCR Article 12– the right to the enjoyment of the highest attainable standard of physical and
mental health
CEDAW Article 12– the right to the enjoyment of the highest attainable standard of physical and
mental health
CERD Article 5(e)(iv)– the right to public health, medical care, social security and social
services.
CRC, Article 24– the right of the child to the enjoyment of the highest attainable standard of
health.
The African Article 16 -Every individual shall have the right to enjoy the best attainable state of
Charter on physical and mental health. State Parties to the present Charter shall take the necessary
Human and measures to protect the health of their people and to ensure that they receive medical
Peoples’ Rights, attention when they are sick.
1981.
The African Charter
on the Rights and Article 14: Every child shall has the right to enjoy the best attainable state of
Welfare of the Child. physical, mental and spiritual health. This includes the provision of nutritious
food and safe drinking water, as well as adequate health care.

The American
Convention on Article 10- Right to Health 1. Everyone shall have the right to health,
Human Rights, 1969, understood to mean the enjoyment of the highest level of physical, mental and
and its Protocols of social well-being. Article 11 –right to healthy environment, and Article 12 – right
1988 and 1990. to food.

Southern African
Development Article 3- States Parties to co-operate to identify, promote, co-ordinate and support
Community Protocol those activities that have the potential to improve the health of the population
on Health within the Region.
 
Mauritius compliance with international and
regional treaties/protocols on right to health

 Mauritius uses the Beveridge Model of healthcare financing. Just like

the United Kingdom the health care services are provided by
government through tax revenue collected from the public.
 Nearly 75% of the population attend state-owned healthcare
institutions for outpatient and inpatient services.
 In 2015, Primary Health Care (PHC) network in Mauritius comprised
18 Area Health Centres, 116 Community Health Centres, 5 Medi-
clinics, 2 Community Hospitals and other satellite PHC institutions.
 Government expenditure on healthcare has drastically increased
since 1968. Per capita public expenditure on health in 2016 stood at
Rs 8,631 which was Rs 28 in 1968.
Mauritius compliance with international and
regional treaties/protocols on right to health

 Mauritius is steadily progressing towards the full realization of the

eight MDGs.[eradication of poverty and hunger, achieving universal
primary education, promoting gender equality and empowering
women, reducing child mortality, improving maternal health,
combatting HIV/AIDS, malaria and other diseases, ensuring
environmental sustainability, and developing global partnership for
development].
 The right to health includes; non- interference with the enjoyment of
the right, effective action to ensure equitable and non-discriminatory
access to health care and services, availability of essential drugs,
food, shelter, housing, sanitation, clean water, health environment.
Mechanisms for monitoring, implementing &
enforcing human rights

 Monitoring, implementation and enforcement of human rights assured by

mechanisms set up at domestic and international level.
 National mechanisms in Mauritius
 (a) Mauritius National Human Rights Action Plan [2012-2020] Prime
Minister’s Office. ( A tool for setting up human rights goals and priorities
within the achievable time frames, further improving the bodies and
agencies set up for promotion of human rights).
 (b) National Human Rights Commission set up under the Protection of
Human Rights Act 1998. (It has 3 Divisions –(1) Human Rights Division;
(2) Police Complaints Division and (3) National Preventive Mechanism
Division established under the National Preventive Mechanism Act 2012.
in accordance with the Optional Protocol to CAT.
Mechanisms for monitoring, implementing &
enforcing human rights [Contd]

 Office of the Ombudsperson under Article 96 of the

Constitution of Mauritius[Mr. Soleman Hatteea]. - an
investigatory body with limited powers to look into complaints
by anyone who claims to be a victim of sustained injustice in
consequence of mal administration.
 Ombudsperson for Children under the Ombudsperson for
Children Act 2003. [Mrs. Rita Venkatasawmy O S K]. Role of the
Ombudsperson described as “primarily to positively influence
policies and programmes concerning children’s rights”. It has an
advisory function and mandated to make recommendations to
improve the lives of children in Mauritius and its territories.
 Complaint Procedure [Mauritius]

 Complaint addressed to NHRC by complainant is examined (information

gathering exercise- summoning complainant, respondent, witnesses,
request fro submission of documents concerning complaint, visit locus if
needed).
 Complaint may call in person or put in written form to be sent to NHRC A
Complaint Form is also available.
 NHRC first adopts a conciliatory procedure. If it fails the case is referred to
the DPP (if it appears an offence is committed0, or to the relevant Service
Commission, or to the Parastatal bodies or Government owned company.
 The NHRC sends its conclusion and any recommendation to the Minister
responsible for human rights for appropriate action. The complainant is
informed of the action taken.
 Mechanisms for monitoring, implementing &
enforcing human rights [Contd]
 International system
 (a) Reporting system under the human rights treaties- most predominant
and ubiquitous system to oversee realization of human rights in
contracting states. There are ten human rights treaty bodies that monitor
implementation of the core international human rights treaties. They are:
Committee on the Elimination of Racial Discrimination (CERD);
Committee on Economic, Social and Cultural Rights (CESCR) Human
Rights Committee (CCPR); Committee on the Elimination of
Discrimination against Women (CEDAW;) Committee against Torture
(CAT); Committee on the Rights of the Child (CRC); Committee on
Migrant Workers (CMW); Subcommittee on Prevention of Torture (SPT);
Committee on the Rights of Persons with Disabilities (CRPD); Committee
on Enforced Disappearances (CED).
Mechanisms for monitoring, implementing &
enforcing human rights [Contd]

 Inter- State complaints – States have shown reluctance to

bring a case against another State for practical and diplomatic
reasons. They prefer non-contentious means of dispute
resolution in many instances.

 Some treaties do provide for inter-state complaint. Ireland v

United Kingdom (1978, No. 25 ECHR) [The five techniques of
interrogations], Cyprus v Turkey (2001) ECHR. The ECtHR
found 14 violations of human rights by Turkey.
Mechanisms for monitoring, implementing &
enforcing human rights [Contd]

 Democratic Republic of the Congo v Rwanda, Burundi and Uganda

[Communication 227/1999]. The Congolese government alleged
horrendous violation of human rights by Rwanda, Burundi and Uganda.
Thousand massacred, women raped and deliberately infected with
HIV/AIDS, armed aggression against the Congolese. The African
Commission on Human & Peoples’ Rights found that Burundi perpetrated
massive violation of human rights protected under the Charter.
 Georgia v Russian Federation (2011) ICJ. Georgia claimed that the
Russian Federation had violated human rights under the CERD. The
Russian Federation objected to the move by arguing that the ICJ had no
jurisdiction to decide on the matter. Georgia relied on Article 22 of the
Convention. The ICJ held it had no jurisdiction.
Mechanisms for monitoring, implementing &
enforcing human rights [Contd]

 Article 22 of CERD – “Any dispute between two or more States

Parties with respect to the interpretation or application of this
Convention, which is not settled by negotiation or by the
procedures expressly provided for in this Convention, shall, at
the request of any of the parties to the dispute, be referred to
the International Court of Justice for decision, unless the
disputants agree to another mode of settlement”.
 Individuals can bring complaints against their own states for
alleged violation of human rights. This can be in the form of a
case to the Court established for dealing with human rights
violations or through reports to an independent body.
Mechanisms for monitoring, implementing &
enforcing human rights [Contd]

 The European Court of Human Rights, the Inter - American Court

of Human Rights, and the African Court of Human Rights follow
an adversarial procedure to adjudicate on disputed rights.
 United Nations Committees established under the treaties do not
follow an adversarial procedure. They are more inclined towards
examination of country reports.
 The Committee may come up with negative findings against a
state. In such a case the state may take remedial action so as not to
be embarrassed and to avoid punitive sanctions. The effectiveness
of individual complaints resides in state compliance with the
convention rights (most of the time).
 Mechanisms for monitoring, implementing & enforcing
human rights [Contd]
 Special procedures – Appointment of independent experts by the Human
Rights Council to examine and report on specific human rights or the
situation of human rights in specific countries.
 Late Chief Justice Lallah  as Special Rapporteur in Myanmar.
 Ms. Sheila B. Keetharuth, Special Rapporteur on the situation of human
rights in Eritrea.
 Ms. Pramila Patten, Special Rapporteur on violence against women and
the CEDAW General Recommendation no. 35 on gender-based violence
against women .
 Y. K. J. Yeung Sik Yuen as the Mauritian independent expert on the UN
Committee on the Elimination of Racial Discrimination.
United Nations bodies for enforcement of human rights
 United Nations High Commissioner for Refugees (UNHCR) - established
by the General Assembly in December 1950.
 The Office of the United Nations High Commissioner for Human Rights
(OHCHR) - a department of the Secretariat of the United Nations. Works
to promote and protect the human rights guaranteed under international
law and stipulated in the Universal Declaration of Human Rights of 1948.
Created in 1993. [The current High Commissioner is Michelle Bachelet of
Chile].
 International Committee of the Red Cross – (ICRC) [looking after
humanitarian laws]
 Non- governmental organizations (NGOs)
Mechanisms for monitoring, implementing &
enforcing human rights [obstacles]

 Multilateral treaties bind all states equally, subject to reservations entered

into by any member state on a subject that it feels not ready for
implementation due to economic or political factors.
 Any state wishing to denounce a multilateral convention faces immense
difficulties and it may be impossible to get out of the agreed obligations. The
decision of North Korea to withdraw from the ICCPR could not go through
as it did not meet all states’ agreement.
 The lack of enforcement mechanism at international level makes many
human rights conventions a dead letter.
 International human rights conventions have been criticized as
predominantly western and based on Christian beliefs and values. Thus they
do not attract unanimity[(cultural and religious divides become a big hurdle]
Mechanisms for monitoring, implementing &
enforcing human rights [obstacle]

 An example would be death penalty which is human right

conventions condemn as a means for punishment for crimes. Many
states still apply death penalty. [USA, India, Indonesia, Malaysia,
Russia, Pakistan].
 The world harbors many religions, cultures and traditions, and even
political system differ. It stands to reason therefore that homogeneity
in human rights norms would be difficult to be achieved.
 The regime of impunity for violations of international human rights
conventions weakens the UN system of enforcement.
 Holders of veto powers very often close their eyes on perpetrators of
human rights violation for their selfish gains.
 Whose human rights?
 The presumption of innocence is the cardinal principle of criminal law. The
accused is innocent until proved guilty. Supported by the golden thread rule
{Wolmington v DPP} of proof beyond reasonable doubt, the justice system
protects seems to accord more protection to the accused.
 The victim’s right {whether in murder, rape, theft, armed robbery} is not the
priority of the justice system.
 Perpetrators of terrorist acts in most cases invoke human rights provisions to
force state authorities to respect their ‘human rights’ [fair trail ,decent prison
with food, medical facilities, 24 hour police security assured by police].
 Victims & their families are nearly ignored by authorities.
 Judgment pronounced by courts is not always enforced by government (the
case of Pointu).
 Whose human rights?

 Although human rights should be granted to everyone, some

states continue to perpetrate discrimination and abuse in all
forms thus denying individuals their fundamental rights.
 According to Global Index nearly 40 million people are enslaved
as at 2017. Forced marriage, sex workers, child labour , human
trafficking; [modern definition of slavery] rampant in the world.
 Persecution of minorities continue to create tensions in most
states although being party to the convention for the protection
of minority rights.
 International human rights bodies including the ILO seem to
have failed in their responsibilities as regard protection and
promotion of human rights.
 Whose human rights?

 The civilized states involvement in the Rwandan genocide in

1994 is a glaring example of unevenness by the international
community in dealing with human rights. France’s role in the
massacre is still questioned.
 The double standard of human rights pursued by western
countries and international organizations.
 The jurisdiction of the International Criminal Court - the first
permanent, treaty based, international criminal court for
perpetrators of the most serious crimes of concern to the
international community, is not recognized by many states.