THE UNITED REPUBLIC OF TANZANIA

THE LAW SCHOOL OF TANZANIA

LS 110
HUMAN RIGHTS AND LEGAL AID

Thursday, May 30, 2024 (c) 2020 Mr. Justice R.V. Makaramba 1
 Generations of
Human Rights
Protection

© 2023 Mr. Justice (Rtd)

Robert V. Makaramba
1. Introduction

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2. Human Rights and the Cold War

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3. Generations of Human Rights

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 1st: Civil and Political Rights
 2nd: Economic, Social & Cultural Rights
 3rd : Collective or Solidarity Rights
4. Fourth Generation of Rights?
5. Conclusion
Introduction
 As per the 1993 Vienna Declaration And
Programme of Action:
5. All Human Rights are Universal,
Indivisible, and interdependent and
interrelated…..
 But are all human rights equally
applicable and enforceable to all human
beings irrespective of their colour, race,
status, age, political/religious etc.?
 The UNIVERSALITY principle that is embodied in the
1993 Vienna Declaration and Programme of Action:

 Treat human rights globally in a fair and equal

manner, on the same footing, and with the same
emphasis.

 Cultural relativism: the emphasis is on the

significance of national and regional particularities
and various historical, cultural and religious
backgrounds when addressing human rights
But the 1993 Vienna Declaration and
Programme of Action insists that:

“….While 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 human rights
and fundamental freedoms.”
Human Rights and the Cold War Ideologies
The Preamble of the UN Charter:

WE THE PEOPLES OF THE UNITED

NATIONS DETERMINED
to save succeeding World War I:
generations from the scourge 1917-1919
of war, which twice in our
lifetime has brought untold World War II:
1939-1945
sorrow to mankind,
The 1884 Berlin Conference:
The Scramble and Partition
of Africa

Post WWI German lost,

“enemy properties” taken
over, Britain took
Tanganyika Protectorate.

1920 Tanganyika Order in

Council
Post World War I:
1930s: The rise of the Nazi Party and Adolf
Hitler.

1941: Imperialist Japan attacked the U.S.

naval base at Pearl Harbor, the
U.S. joined the Allies in what had
become a war of two fronts: one in
Europe and one in the Pacific.
 The scourge of war:
 By its end in 1945, World War II had cost
over a hundred million lives.

 In addition to soldiers, many civilian lives

were lost, including six million Jews
killed in the Holocaust and hundreds of
thousands of Japanese (Hiroshima) killed
by U.S. atomic bombs.
1945: UN established to replace the
League of Nations.
 The League of Nations (1920 – 1946) was
the first intergovernmental organization
established “to promote international
cooperation and to achieve international
peace and security.” It is often referred
to as the “predecessor” of the United
Nations.
 Its founding document – the Covenant of the
League of Nations – was drafted during the peace
negotiations at the end of the First World War.

 It was composed of 26 articles, and covered many

aspects of the organization, such as the conditions
for membership, the functions of the principal
organs, the mechanisms for a peaceful settlement
of international disputes, and the obligations of the
Member States. The Covenant also contained the
main principles on which the League was built.
 The League of Nations was also in
charge of supervising the Mandate
system.
 The “mandated territories” were
former German colonies and Ottoman
territories placed under what the
Covenant called the “tutelage” of
mandatory powers until they could
become independent states.
1948: Universal Declaration of Human
Rights adopted.

 The Universal Declaration of Human

Rights, which was adopted by the UN
General Assembly on 10 December 1948,
was the result of the experience of the
Second World War.
The Cold War: Capitalist West vs. Socialist East

 The Cold War thirty years after the Bolshevik

Revolution.

 The Russian Revolution of 1917 (November)

overthrew the imperial government (tsarist)
and placed the Bolsheviks in power, a group
of intellectuals lead by Lenin and Trotsky.
 The decolonization of many former
colonies Asian, African and Latin lead
to an “Inferior South” against an
“Imperial North.”

 Different ideologies started to

emerge.

 Developmentalism
Karel Vasak’sGenerations of Rights and the
Contemporary Human Rights Discourse

Generations for Human Rights Protection:

• The field of protection of human rights grows from

time to time and now having three generations.

• The concept of negative rights (“freedoms

from”) and positive rights (rights to) was
firstly addressed by Isaiah Berlin (1990).
 Karel Vašák’s Three Generations of Rights

 The classification provided by Karel Vašák offers

the notion of three generations of rights (Vašák
1977, pp. 29–32)

 Ref. Vašák K (1977) Human Rights: A Thirty-Year

Struggle: the Sustained Efforts to give Force of law
to the Universal Declaration of Human Rights.
UNESCO Courier, 11:29–32.
 Karel Vašák’s Three Generations of Rights

Second
First Generation Generation- Third generation
– Western – Eastern – – Southern – Self
Capitalism – Civil Socialism – Social Determination –
& Political Economic and Collective Rights
Cultural
 The first generation regards negative rights
and corresponds to civil and political liberties.

 The second generation presumes a positive

action of the state and includes social,
economic, and cultural rights.

 Corresponding covenants signed in 1966: the

ICCPR for the first and ICESCR for the second.
 In 2008, additional protocol to the ICESCR
was opened for parties willing to elevate
the role of social, economic, and cultural
rights to the one of the ICCPR (see
Ssenyonjo 2011; Mapulanga-Hulston 2002).
 The sharp distinction between the two
covenants lies in the parties’ obligations
stemming from the respective Article 2.1. for
each of them.

 The ICCPR relevant provision requires states’

“respect and insurance” of the rights enlisted
in the Covenant, whereas the ICESCR binds
countries only of “taking steps” in certain
direction aiming at the fulfillment of the
Covenant’s provisions.
 Art. 2.1. of the ICCPR “Each State Party to the present
Covenant undertakes to respect and to ensure to all
individuals.”
 Art. 2.1. of the ICESCR “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.”
 The Third generation of human rights is referred
to as “rights of solidarity.”

 They require collective action of individuals as

well as states and other political units
 The first generation has a long history of
accenting liberty, dating back to the Magna
Carta (1297) and including such milestone
documents as the United States Bill of Rights
(1791) and the French Declaration of Rights of
Man and of the Citizen (1789).

 Among those rights are the right to life,

freedom of speech, freedom of religion, right
to fair trial, equality before the law, and
other civil and political rights.
• The second generation of equality rights was
a product of the rapid nineteenth century
industrialization and accompanying social
and economic inequalities.

• In the context of the emerging ideological

confrontation after WWII, the communist
camp staunchly supported the economic,
social, and cultural rights. Their distinct
feature is the prerequisite for active state
involvement.
 The first two generations of rights were
encompassed in the Universal Declaration of
Human Rights (UN General Assembly 1948), with the
West and the East clearly prioritizing respectively
the first and second generations.

 The negative character of the first generations of

rights, the positive character of the second
generations of rights.
 Both generations refer to individual rights and
impose the corresponding duties onto the nation
state.
 The third generation of human rights is the most recent
and vague in content. Collective rights that belong to this
group were mentioned in the Stockholm Declaration (UN
General Assembly 1972), Rio Declaration (UN General
Assembly 1992), and other international documents of
declaratory character.

 Those rights include right to self-determination, economic

and social development, healthy environment, natural
resources, and participation in cultural heritage. Hence,
such rights are positive and collective and demand
responsibility, which lies beyond the nation-state.
Vašák’s differentiation between the three
generations quite neatly fits into the the three
dichotomies based on the major approaches to
human rights categorization:

(1) negative (first generation) and positive (second

and third generations),
(2) individual (first and second generations) and
collective (third generation), and
(3) national (first and second generations) and
international (third generation) liability
 Ultimately, the third generation of rights
assumes that they are positive, in terms of
requiring active participation of duty-
bearers; collective, in terms that focus on
people or collectivities instead of
individuals; and international, that they
operate within the international relations
erga omnes instead of the sole
relationship between the state and the
individual.
A good right requires:

i) a holder of the right, who can bring

ii) an objectified claim against
iii) duty-bearer who must honour the claim.

 The collective claims against the vaguely

defined participants in international
relations can hardly meet this test.
 The 1948 Universal Declaration of Human Rights proclaims
the interdependence, indivisibility and equal value of all
human rights. However, the adoption, in 1966, of two
different universal instruments, a Covenant on Civil and
Political another Covenant on Economic, Social and
Cultural Rights, paved the way for a differential
treatment of both sets of human rights.

 A particularly telling example of this differential

treatment was the original provision of a complaints
procedure for violations of civil and political rights, while
no such procedure was established regarding economic,
social and cultural rights.
 On 10 December 2008 the Optional
Protocol to the International Covenant on
Economic, Social and Cultural Rights (OP-
ICESCR) was adopted thus closing legal
protection gap, finally recognizing the
justiciability of economic, social and
cultural rights in the international sphere,
on an equal footing with civil and
political rights.
 On the justiciability of economic,
social and cultural rights at the
national level, read the relevant
provisions in the South African
Constitution and the 2010 Kenya
Constitution and relevant case
law from both jurisdiction.
 Civil and Political Rights
These are the basic freedoms Most of these rights
and liberties states or are protected by the
governments are required not ICCPR
to interfere with.

Sometimes no actual
expenditure from Tanzania ratified the
governments to be incurred for Covenant in 1976.
its citizens to realize this right .
ICCPR: Adopted and opened for signature, ratification
and accession by General Assembly resolution
2200A (XXI) of 16 December 1966 - entry into force 23
March 1976, in accordance with Article 49
PREAMBLE
 The States Parties to the present Covenant, Considering
that, in accordance with the principles proclaimed in the
Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all
members of the human family is the foundation of
freedom, justice and peace in the world,
 Recognizing that these rights derive from the inherent
dignity of the human person,
 Art 1 - right of self-determination
 Art 2 –Obligation to each State Party to the
present Covenant undertakes to respect and to
ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the
present Covenant
 Art. 3 - the equal right of men and women to the
enjoyment of all civil and political rights
 Art 4 Right to derogate rights in time of public
emergency which threatens the life of the nation
and the existence of which is officially proclaimed
• Art 5 Limitation of derogations
• Art 6 Every human being has the inherent right to
life
• Art 7 No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or
punishment.
• Art 8 No one shall be held in slavery; servitude,
forced or compulsory labour or slave-trade.
• Art 9 Everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary
arrest or detention
ICCPR Art 9
• 1. Everyone has the right to liberty and security
of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds
and in accordance with such procedure as are
established by law.
• 2. Anyone who is arrested shall be informed, at
the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges
against him.
• 3. Anyone arrested or detained on a criminal
charge shall be brought promptly before a
judge or other officer authorized by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release. It
shall not be the general rule that persons
awaiting trial shall be detained in custody, but
release may be subject to guarantees to
appear for trial, at any other stage of the
judicial proceedings, and, should occasion arise,
for execution of the judgement.
• 4. Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take
proceedings before a court, in order that
that court may decide without delay on
the lawfulness of his detention and order
his release if the detention is not lawful.

• 5. Anyone who has been the victim of

unlawful arrest or detention shall have an
enforceable right to compensation.
ICCPR Article 10
 1. All persons deprived of their liberty shall be
treated with humanity and with respect for the
inherent dignity of the human person.
 2. (a) Accused persons shall, save in exceptional
circumstances, be segregated from convicted
persons and shall be subject to separate treatment
appropriate to their status as unconvinced
persons;
 (b) Accused juvenile persons shall be separated
from adults and brought as speedily as possible
for adjudication.
 3. The penitentiary system shall comprise treatment
of prisoners the essential aim of which shall be
their reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be
accorded treatment appropriate to their age and
legal status.

 Article 11. No one shall be imprisoned merely on

the ground of inability to fulfil a contractual
obligation.
ICCPR
 Art 12 - the right to liberty of movement and
freedom to choose his residence.

 Art 13 An alien lawfully in the territory of a State

Party to the present Covenant may be expelled
therefrom only in pursuance of a decision reached
in accordance with law.

 Art 16 - Everyone shall have the right to recognition

everywhere as a person before the law.
 Article 17[1]. No one shall be subjected to
arbitrary or unlawful interference with his
privacy, family, or correspondence, nor to
unlawful attacks on his honour and
reputation.
 2. Everyone has the right to the protection of
the law against such interference or attacks.

 Art 18 - right to freedom of thought, conscience

and religion.
Art – 14 – Fair Trial & Equality before the law

 1. All persons shall be equal before the courts

and tribunals. In the determination of any
criminal charge against him, or of his rights
and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing
by a competent, independent and impartial
tribunal established by law.
 The press and the public may be excluded from all or
part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or
when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity
would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law
shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
 2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty
according to law.

 3. In the determination of any criminal charge against him,

everyone shall be entitled to the following minimum
guarantees, in full equality:
 (a) To be informed promptly and in detail in a language
which he understands of the nature and cause of the
charge against him;
 (b) To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;

c) To be tried without undue delay;
(

 (d) To be tried in his presence, and to defend

himself in person or through legal assistance
of his own choosing; to be informed, if he
does not have legal assistance, of this right;
and to have legal assistance assigned to him,
in any case where the interests of justice so
require, and without payment by him in any
such case if he does not have sufficient means
to pay for it;
• (e) To examine, or have examined, the
witnesses against him and to obtain the
attendance and examination of witnesses on
his behalf under the same conditions as
witnesses against him;
• (f) To have the free assistance of an
interpreter if he cannot understand or speak
the language used in court;
• (g) Not to be compelled to testify against
himself or to confess guilt.
 4. In the case of juvenile persons, the
procedure shall be such as will take
account of their age and the desirability
of promoting their rehabilitation.

 5. Everyone convicted of a crime shall

have the right to his conviction and
sentence being reviewed by a higher
tribunal according to law.
 7. No one shall be liable to be
tried or punished again for an
offence for which he has already
been finally convicted or
acquitted in accordance with the
law and penal procedure of
each country.
 6. When a person has by a final decision been
convicted of a criminal offence and when
subsequently his conviction has been reversed or
he has been pardoned on the ground that a new
or newly discovered fact shows conclusively that
there has been a miscarriage of justice, the person
who has suffered punishment as a result of such
conviction shall be compensated according to law,
unless it is proved that the non-disclosure of the
unknown fact in time is wholly or partly
attributable to him.
Article 15
 1 . No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal offence,
under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time when the criminal offence was
committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty,
the offender shall benefit thereby.

 2. Nothing in this article shall prejudice the trial and punishment of

any person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by the community of nations.
Equality before the law & Non Discrimination
Article 26
 All persons are equal before the law and are
entitled without any discrimination to the equal
protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all
persons equal and effective protection against
discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion,
national or social origin, property, birth or other
status.
Article 27
 In those States in which ethnic, religious
or linguistic minorities exist, persons
belonging to such minorities shall not be
denied the right, in community with the
other members of their group, to enjoy
their own culture, to profess and practise
their own religion, or to use their own
language.
Art 19 – right to freedom of Expression
 1. Everyone shall have the right to hold
opinions without interference.
 2. Everyone shall have the right to freedom
of expression; this right shall include
freedom to seek, receive and impart
information and ideas of all kinds,
regardless of frontiers, either orally, in
writing or in print, in the form of art, or
through any other media of his choice.
 3. The exercise of the rights provided for in
paragraph 2 of this article carries with it
special duties and responsibilities. It may
therefore be subject to certain restrictions, but
these shall only be such as are provided by
law and are necessary:
 (a) For respect of the rights or reputations of
others;
 (b) For the protection of national security or
of public order (ordre public), or of public
health or morals.
Right to freedom of Association and Assembly
Article 21

 The right of peaceful assembly shall be recognized.

No restrictions may be placed on the exercise of
this right other than those imposed in conformity
with the law and which are necessary in a
democratic society in the interests of national
security or public safety, public order (ordre
public), the protection of public health or morals or
the protection of the rights and freedoms of others.
 Article 22 [1. Everyone shall have the right to freedom of
association with others, including the right to form and
join trade unions for the protection of his interests.

 2. No restrictions may be placed on the exercise of this

right other than those which are prescribed by law and
which are necessary in a democratic society in the
interests of national security or public safety, public order
(ordre public), the protection of public health or morals or
the protection of the rights and freedoms of others. This
article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the
police in their exercise of this right.
Article 23
 1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.
 2. The right of men and women of marriageable age to
marry and to found a family shall be recognized.
 3. No marriage shall be entered into without the free and
full consent of the intending spouses.
 4. States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of
Article 24
 1. Every child shall have, without any
discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth,
the right to such measures of protection as are
required by his status as a minor, on the part of his
family, society and the State.

 2. Every child shall be registered immediately after

birth and shall have a name.
 3. Every child has the right to acquire a nationality.
Citizenship
Article 25
 Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
 (a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
 (b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free
expression of the will of the electors;
 (c) To have access, on general terms of equality, to public
service in his country.
Civil and Political rights
Right to Life

Right to Equality before the law

Right to Personal Liberty

Right to Freedom from Slavery

Right to Freedom from Torture

Right to Citizenship

Right to Privacy
 Civil and Political rights
Right to Family
Right to Work
Right to own Property
Right to Freedom from Servitude
Right to Freedom of movement,
Right to freedom of association,
Right to freedom of expression,
Right to freedom of religion , opinion, conscience etc
05/30/2024 by H. Sungusia (Adv)
 Economic, Social and Cultural Rights
These rights touches the
actual and basic needs for Moss governments’ excuse
survival of people in for not ensuring that their
respect of their lives people enjoy these rights
economically, socially and claiming is lack of adequate
culturally. resources.

Governments are required to Most of these

incur some costs in order for rights are TZ ratified
its people to enjoy these protected by the in 1976.
ICESCR of 1966
rights.
ICESR: Adopted and opened for signature,
ratification and accession by
General Assembly resolution 2200A
(XXI) of 16 December 1966 entry into
force 3 January 1976, in
accordance with article 27.
The States Parties to the present Covenant:
 Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations,
 recognition of the inherent dignity and of the
equal and inalienable rights of all members of the
human family is the foundation of freedom, justice
and peace in the world,
 Recognizing that these rights derive from the
inherent dignity of the human person;
Self Determination
Article 1
 1. All peoples have the right of self-determination.
By virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development.

 2. All peoples may, for their own ends, freely

dispose of their natural wealth and resources
without prejudice to any obligations arising out of
international economic co-operation, based upon
the principle of mutual cooperation.
Progressive realization

 Art 2 Obligation to 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.
 Art 3 equal right of men and women to the
enjoyment of all economic, social and cultural
rights set forth in the present Covenant

 Art 4 - enjoyment of those rights provided by the

State in conformity with the present Covenant, the
State may subject such rights only to such
limitations as are determined by law only in so far
as this may be compatible with the nature of these
rights and solely for the purpose of promoting the
general welfare in a democratic society.
• Art. 5 Limitation of derogations

• Art 6 - right to work, which includes

the right of everyone to the
opportunity to gain his living by work
which he freely chooses or accepts,
and will take appropriate steps to
safeguard this right.
 Art 7 Right of everyone to the enjoyment of just and
favourable conditions of work which ensure, in
particular:
 (a) Remuneration which provides all workers, as a
minimum, with:
 Fair wages and equal remuneration for work of equal
value without distinction of any kind, in particular
women being guaranteed conditions of work not
inferior to those enjoyed by men, with equal pay for
equal work;

 A decent living for themselves and their families in

accordance with the provisions of the present
 (b) Safe and healthy working conditions;
 (c) Equal opportunity for everyone to be
promoted in his employment to an
appropriate higher level, subject to no
considerations other than those of seniority
and competence;

 (d ) Rest, leisure and reasonable limitation of

working hours and periodic holidays with
pay, as well as remuneration for public
holidays.
 Art 8 Right of everyone to form trade unions and
join the trade union of his choice, subject only to
the rules of the organization concerned, for the
promotion and protection of his economic and
social interests. No restrictions may be placed on
the exercise of this right other than those
prescribed by law and which are necessary in a
democratic society in the interests of national
security or public order or for the protection of the
rights and freedoms of others (d) The right to
strike, provided that it is exercised in conformity
with the laws of the particular country.
 Art 9 right of everyone to social security, including social
insurance.
 Art 10 1. The widest possible protection and assistance
should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its
establishment and while it is responsible for the care and
education of dependent children. Marriage must be
entered into with the free consent of the intending
spouses.
 2. Special protection should be accorded to mothers during
a reasonable period before and after childbirth. During
such period working mothers should be accorded paid
leave or leave with adequate social security benefits.
 Art 11 - the right of everyone to an adequate
standard of living for himself and his family,
including adequate food, clothing and housing,
and to the continuous improvement of living
conditions. The States Parties will take appropriate
steps to ensure the realization of this right,
recognizing to this effect the essential importance
of international cooperation based on free
consent. + right of everyone to be free from
hunger, shall take, individually and through
international co-operation, the measures, including
specific programmes, which are needed.
 Art 12 the right of everyone to the enjoyment of the
highest attainable standard of physical and mental
health.
 Art. 13 right of everyone to education. They agree that
education shall be directed to the full development of the
human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable
all persons to participate effectively in a free society,
promote understanding, tolerance and friendship among
all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the
maintenance of peace.
 Cultural rights
Art 15 -the right of everyone:
 (a) To take part in cultural life;
 (b) To enjoy the benefits of scientific
progress and its applications;
 (c) To benefit from the protection of the
moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author.
 Economic Social and Cultural
Right to access basic needs - Right to food,
shelter, water, clothes,

Right to education,
Right to Health
Right to benefit from scientific
advancements
Right to language
05/30/2024 by H. Sungusia (Adv)
 Economic Social and Cultural
Right to freedom from being a
subject of experiment
Right to cultural undertakings/practices

Right to Leisure and

recreation
Right to Work
Right to own Property
Right to family
05/30/2024 by H. Sungusia (Adv)
 Collective Rights
Most of these rights It may happen for a
The origin of are protected by the some rights to
these rights is the African Charter for overlap in any of
developing Human and Peoples the generations.
countries ‘LDCs’ Rights of 1981.

Developed out of concerns:

Apartheid; self détermination; Most of the rights
development; new international are enjoyed
economic order; environment collectively
 The African Charter on Human and Peoples’ Rights
(ACHPR)
 The African Charter on Human and Peoples' Rights
(also known as the Banjul Charter) is both and
international and a regional human rights
instrument designed to reflect the history, values,
traditions, and development of Africa.

 The African Charter is intended to promote and

protect human rights and basic freedoms in the
African continent.
 The Organization of African Unity (OAU) was
created in 1963 as a regional organization, initially
dedicated primarily to the eradication of
colonialism.

 The OAU founding Charter imposed no explicit

obligation on member states for the protection of
human rights. It only required states parties to
have due regard for human rights as set out in the
Universal Declaration of Human Rights in their
international relations.
 The idea of drafting a document establishing a
human rights protection mechanism in Africa was
first conceived in the early 1960’s.

 At the first Congress of African Jurists, held in Lagos,

Nigeria in 1961, the Congress adopted a declaration
otherwise referred to as the ‘Law of Lagos’ calling
on African governments to adopt an African
convention on human rights with a court and a
commission. However, at the time African
governments did not make serious efforts to
promote this concept.
 At the first Conference of Francophone African
Jurists held in Dakar, Senegal, in 1967, participants
again revived the idea of the Law of Lagos on the
need for a regional protection of human rights in
Africa.

 In the Dakar Declaration, adopted after the

Conference, the participants asked the
International Commission of Jurists to consider in
consultation with other relevant African
organisations the possibility of creating a regional
human rights mechanism in Africa.
 In 1979, the Assembly of Heads of States and Government of the
OAU meeting in Monrovia, Liberia, unanimously requested the
Secretary General of the OAU to convene a committee of experts
to draft a regional human rights instrument for Africa, similar to
the European and Inter-American human rights conventions.

 A conference of twenty African experts presided over by Judge

Kéba M’baye was organised in 1979 in Dakar, Senegal. It is
important to note that the work of the Expert Committee was
greatly influenced by the opening address of the host president,
President Senghor, who enjoined the Committee to draw
inspiration from African values and tradition and also to focus on
the real needs of Africans, the right to development and the duties
of individuals. After deliberations for about 10 days, the Committee
prepared an initial draft of the Charter.
 The OAU Secretary- General, the President of
The Gambia convened two Ministerial
Conferences in Banjul, The Gambia, where the
draft Charter was adopted and subsequently
submitted to the OAU Assembly.

 It is for this historic role of The Gambia that the

African Charter is also referred to as the
‘Banjul Charter’.
 The Banjul Charter was finally adopted by the
OAU Assembly on 28 June 1981, in Nairobi,
Kenya and entered into force on 21 October
1986, five years after it was adopted, after the
deposit of the 26th instrument of ratification, the
number required by its Article 63(3).

 By 1999, the African Charter had been ratified

by all the member states of the OAU. Tanzania
ratified the Charter on …..
 Oversight and interpretation of the Charter is
the task of the African Commission on Human
and Peoples' Rights, which was set up in 1987
and is now headquartered in Banjul, Gambia.

 A protocol to the Charter was subsequently

adopted in 1998 whereby an African Court on
Human and Peoples' Rights was to be created.
The protocol came into effect on 25 January
2005.
 The States of the African Union have adopted two protocols that
would replace the AfCHPR with a new African Court of Justice and
Human Rights, intended to hear disputes arising under all African
Union instruments, and give that new court jurisdiction to
prosecute individuals for serious international crimes. However,
neither of the two protocols has been ratified by the required 15
States.

 Protocol on Amendments to the Protocol on the Statute of the African Court of

Justice and Human Rights adopted June 27, 2014 and opened for signature,
April 02, 2019.
 Protocol on the Statute of the African Court of Justice and Human Rights,
adopted July 01, 2008, opened for signature May 11, 2020.
 Both accessible at
[Link]
ts
 Despite the existence of multiple international
human rights instruments such as the Universal
Declaration of Human Rights (UDHR), the
International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESR), the
African Charter consolidates the notion that rights
are interdependent and indivisible[43] by
presenting them in one single instrument. This not
only ensures the promotion and protection of all
the rights set out in the Charter, but also appeals to
the African continent.
 The Charter combines African values with international
norms by not only promoting internationally recognized
individual rights, but also by proclaiming collective rights
and individual duties.

 The Charter covers a wider range of rights than either the

European Convention on Human Rights or the American
Convention on Human Rights.

 As its title indicates, it includes both individual [‘human’]

and collective [‘peoples’] rights. The Charter set forth the
rights of peoples in its Articles 19, 20, and 23 but does not
define the term ‘peoples’.
 The Charter introduces third generation rights
or ‘collective rights’ such as the right to
national and international peace and security
(Art 23(1)), the right to a general satisfactory
environment (Art 24) and the right to
economic, social and cultural development
(Art 22) therefore ensuring that these new
rights are given the importance they deserve
in developing countries.
 The significance of collective rights was expressed in the
case of SERAC & Another v Nigeria [2001] AHRLR 60 where
it was declared that ‘clearly, collective rights,
environmental rights, and economic and social rights are
essential elements of human rights in Africa. ’[para 68].

 The Charter is also unique as it has developed a

contextual approach to human rights. It recognizes that
human rights norms ‘are not universally applicable but
rather vary with time and according to regional cultural
variations’.
 See Julia Swanson, ‘The Emergence of New Rights in the
African Charter’ [1991] 12 NYL Sch J Int’l & Comp L 307, 322 & 308.
 The African Commission has stated, in the
context of a communication concerning
Katangese rights in Zaire,

"There may however be controversy as to the

definition of peoples and the content of the
right [of self-determination]. The issue in the
[Link]
ents/detail?id=49 case is not self-determination for all Zaireans
as a people but specifically for the Katangese.
Whether the Katangese consist of one or more
ethnic groups is, for this purpose, immaterial,
and no evidence has been adduced to that
effect."
 The African Charter on Human and Peoples’ Rights 27 June1981
Structure
 Preamble

 Part I: Rights and Duties

 Chapter I: Human and Peoples' Rights

 Part II: Measures of safeguard

 Chapter I: Establishment and organisation of The African Commission
on Human and Peoples Rights
 Chapter II: Mandate of the Commission
 Chapter III: Procedure of the Commission Communication from States
Other Communication
 Chapter IV: Applicable Principles

 Part III: General Provisions

 Preamble
 Part I: Rights and Duties
Chapter I: Human and Peoples' Rights
Article 1: Obligations of Member States

Civil and Political Rights

Article 2: Right to Freedom from Discrimination
Article 3: Right to Equality before the Law and Equal Protection of
the Law
Article 4: Right to Life
Article 5: Prohibition of Torture and Cruel, Inhuman and Degrading
Treatment
Article 6: Right to Personal Liberty and Protection from Arbitrary
Arrest
Article 7: Right to Fair Trial
Article 8: Right to Freedom of Conscience

Article 9: Right to Receive Information and Free

Expression

Article 10: Right to Freedom of Association

Article 11: Right to Freedom of Assembly

Article 12: Right to Freedom of Movement

Article 13: Right to Participate in Government
Article 14: Right to Property
 Economic, Social and Cultural Rights

Article 15: Right to Work

Article 16: Right to Health
Article 17: Right to Education
Article 18: Protection of the Family and
Vulnerable Groups
Chapter II: Duties
State Duties

Article 25: Duty to Promote Human Rights

Article 26: Duty to Guarantee Independence of Courts

Individual Duties

Article 27: Duty to family, society, state and legally recognized

communities
Article 28: Duty to respect and consider his fellow beings
Article 29: Duty to preserve family, to serve national communites, not
to compromise state security, and to preserve and
strengthen social and national solidarity
See the detail of the various articles in the attached copy of the
The African Charter on Human and Peoples' Rights
 Collective Rights
Right to development,

right to be relieved from debts,

right to peace and security,

right to safe and decent environment etc.

 See The African Charter on Human and Peoples' Rights

Peoples’ Rights (collective or solidarity rights)

Article 19: Right of All Peoples to Equality and Rights

Article 20: Right to Self-Determination
Article 21: Right to Free Disposal of Wealth and Natural
Resources
Article 22: Right to Economic, Social and Cultural
Development
Article 23: Right to National and International Security and
Peace
Article 24: Right to a General Satisfactory Environment
 Summary
1st Generation 2nd Generation 3rd
Generation
Non-
Obligation Intervention Intervention Multi-State
Social, Economic &
Type Civil & Political
Cultural Solidarity
Progressively
Immediate realized according Collectively
Realization to available
recognition Realized
resources
& Respect
4. The Fourth Generation of Human Rights?
 “Where is the Life we have lost in
living?
Where is the wisdom we have lost in
knowledge?
Where is the knowledge we have lost
in information?”
T. S. Eliot, from the Opening Stanza of
Choruses from the Rock, 1934
.
 The Industrial Revolution of Analog vs the
Fourth IR of Digital & Artificial Intelligence
 On December 4, 1948, George Orwell sent to
his publisher the manuscript of 1984, a utopian
novel that captures some of the great fears of
the 20th century.

 Taking place in an imagined future set in 1984,

the book explores the consequences of mass
surveillance and repressive regimentation of
everything people do
 On December 10, 1948, less than a week
after Orwell submitted his novel, the UN
General Assembly took a historic vote.

 The idea that there should be a document

stating protections and provisions owed
to all humans had gained momentum
during the Second World War.
 In 1948, lifeworlds were thoroughly
analog, involving interactions and
technologies driven by tactile
physical experiences and organized
around measurements that
represented what they measured, as
a clock’s moving hands represent
time, making clocks “analog” to
time.
 That the Universal Declaration
emerged from our analog past does
not mean it fails to speak to the digital
lifeworlds we increasingly inhabit,
lifeworlds structured around electronic
devices and numerically coded
information (“digital” information,
from the Latin for finger)
 The Emergence of Epistemic Rights
Episteme— is Greek for understanding.
Four roles that constitute epistemic
actorhood:
i) individual epistemic subjects,
ii) collective epistemic
iii) subjects, individual epistemic objects,
and
iv) collective epistemic objects.
 Epistemic Rights in the UDHR and Beyond

 The right to freedom of opinion and

expression
 The right to access to information (right to
know)
 The “right to knowledge” (introduced by the
English writer H. G. Wells, who died in 1946,
science fiction “Time Machine and War of the
Worlds.”
• In the part of the world shaped by
liberalism, democracy, and capitalism, the
main tendency has been to strengthen
capitalism rather than liberalism or
democracy.
• Accordingly, we now find ourselves in
surveillance capitalism rather than in
democratized, digital lifeworlds with
strong rights protections.
5. Conclusion
• Treat human rights
globally in a fair and
equal manner, on the
same footing, and
with the same
emphasis
REFERENCES
 International Human Rights Law in Global Context
Felipe Gomez Isa and Koen de Feyter (eds)(209)
University de Deusto, Bilbao
[Link] .

 The globalization of human rights, Edited by Jean-

Marc Coicaud, Michael W. Doyle, and Anne-Marie
Gardner (The United Nations University, 2003]
 [Link]
[Link]
 The Fourth Generation of Human Rights:
Epistemic Rights in Digital Lifeworlds FALL
2021, CARR CENTER FOR HUMAN RIGHTS
POLICY HARVARD KENNEDY SCHOOL
[Link]
hr/files/risse_fourth-[Link]
 See the Vienna Declaration and Programme
of Action (1993). Adopted by the World
Conference on Human Rights in Vienna on 25
June 1993. Available at
[Link]
st/Pages/[Link]
.

 Magna Carta (1297) Available at:

[Link]
/25/9/[Link]
 UN General Assembly (19660) International
Covenant on Civil and Political Rights.
[Link]
nalInterest/[Link]
.

 UN General Assembly (1966b) International

Covenant on Economic, Social, and Cultural
Rights.
[Link]
nalInterest/[Link]
OPTIONAL PROTOCOL TO THE INTERNATIONAL
CONVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS. Available at
[Link]
df
 The Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights, Geneva, July 2013,
ACADEMY IN-BRIEF No. 2. © Geneva Academy of
International Humanitarian Law and Human Rights, July
2013.
 Available at
[Link]
he%20optional%20protocol%20In%20brief%[Link]

 The Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights: A Commentary, Edited by MALCOLM
LANGFORD, University of Oslo, Pretoria University Law Press
(PULP), 2016
Swanson, Julia (1991) "THE EMERGENCE OF NEW RIGHTS IN THE
AFRICAN CHARTER," NYLS Journal of International and Comparative
Law: Vol. 12 : No. 1 , Article 8. Available at:
[Link]

[Link]

Makau w. Mutua, The African Human Rights System: A Critical

Evaluation, Prepared for United Nations
Development Programme, Human Development Report 2000 (2000).
Available at: [Link] and at
[Link]

Nmehielle, Vincent O. "Development of the African Human Rights

System in the Last Decade." Human Rights Brief 11, no. 3 (2004): 6-11.
Available at
[Link]
Thank You Very
Much For Your
Attention!
"Silence is foolish if we are wise, but wise if we are foolish." - Charles Caleb Colton [1]