HUMAN RIGHTS

• The idea of human rights emerged stronger after

World War II.
• The extermination by Nazi Germany of over six
million Jews, horrified the world.
• Trials were held in Nuremberg and Tokyo after
World War II.
• officials from the defeated countries were
punished for committing war crimes, "crimes
against peace," and "crimes against humanity."
• Governments then committed themselves to establishing
the United Nations.
• The primary goal of bolstering international peace and
preventing conflicts.
• The calls came from across the globe for human rights
standards to protect citizens from abuses by their
governments, standards against which nations could be
held accountable for the treatment of those living within
their borders.
• These voices played a critical role in the San Francisco
meeting that drafted the United Nations Charter in 1945.
 What are human rights?
• Human rights are rights inherent to all human
beings, whatever our nationality, place of
residence, sex, national or ethnic origin,
colour, religion, language, or any other
status.
• We are all equally entitled to our human rights
without discrimination.
• These rights are all interrelated,
interdependent and indivisible.
• Human rights are often expressed and guaranteed
by law.
• These are in forms of treaties, customary
international law, general principles and other
sources of international law.
• International human rights law lays down
obligations of Governments to act in certain ways or
to refrain from certain acts, in order to promote
and protect human rights and fundamental
freedoms of individuals or groups.
 Some concepts
• Respect rights (to avoid violating rights)
• Protect rights (to prevent others from
violating rights)
• Fulfil rights (to provide positive assistance or
services necessary for the claims of the
individual to be met)
• Evolution of human rights:
• Natural law theory (Aristotle): on the idea that human
beings, by their own nature, anywhere and anytime have
rights that are previous and primary to the ones assigned
by the society.
• Greece philosophers eg Thomas Aquinas, whose ideas are
founded on higher authority, connects human rights with
ten commandments to argue on aspects of equality.
• According to them individual is at the centre of the right,
social and legal and that the divine law is supreme to the
law made by authorities.
• Developed further in 17c by philosophers like
Hugo Grotius who asserted that:
‘man is a sociable being by its nature, who
wishes to live peacefully with its fellows, able
to determine by himself on what is useful or
harmful for society’
• Further contributions by Roseau and
Montesquieu
• The first legal instrument that recognized human
rights in Europe was the Magna Carta proclaimed
in England by King John England in 1215
• “No free man could be arrested, imprisoned or
dispossessed of his goods, declared against the
law, exiled or injured in any matter and we will
not be against him or send anyone against him
without a loyal judgment of his equals or in
conformity with the law of the country’
 Cont……
• Subsequent documents include: The petition of Rights
1628;The Habeas Corpus Act 1679; Bill of Rights 1689
• In the US the State of Virginia adopted the
Declaration of Rights from the State of Virginia 1776
that stated:all people are born equal, free and
independent; they have inherent rights they cannot
be deprived of or dispossessed of by any contract
• At International level The 1919 League of Nations
introduced the right to freedom from enslavement
• It adopted the Slavery Convention 1926
• In 1948 the first global instrument was
adopted-The UDHR.
• The adoption of UDHR was largely influenced
by the WWII (1939-1945) Atrocities in which
the UN Charter was adopted and later the
UDHR.
 Sources of Human Rights Norms and
Standards
• Treaties
• Customary International law
• Judicial decisions
• Declarations, General Comments,
Recommendations
 Human rights Monitoring mechanism
• Charter based mechanism:
• Human rights Council
• UPR
• Special procedures: Special Rapporteurs,
chairs of working groups and independent
experts
• Advisory Committee
 Treaty based mechanism
• The human rights treaty bodies are committees of
independent experts that monitor implementation
of the core international human rights treaties.
• Each State party to a treaty has an obligation to take
steps to ensure that everyone in the State can enjoy
the rights set out in the treaty.
• There are ten human rights treaty bodies composed
of independent experts of recognized competence in
human rights, who are nominated and elected for
fixed renewable terms of four years by State parties
 International human rights monitoring
mechanism: Charter based
• Human rights Council and its subsidiaries: Universal Periodic
Review; Working Group( Complaint procedures); and the
Advisory Committee.
• The Human Rights Council is an inter-governmental body
within the United Nations system.
• It is responsible for strengthening the promotion and
protection of human rights around the world.
• It is also responsible for addressing situations of human rights
violations and make recommendations on them. It has the
ability to discuss all thematic human rights issues and
situations that require its attention.
• It meets at the UN Office at Geneva.
 HRC and Special Procedures
• The council works together with special procedures of the
Human rights Council such as independent experts.
• he special procedures of the Human Rights Council are
independent human rights experts with mandates to
report and advise on human rights from a thematic or
country-specific perspective. The system of Special
Procedures is a central element of the United Nations
human rights machinery and covers all human rights: civil,
cultural, economic, political, and social. As of 1 August
2017, there are 44thematic and 12 countrymandates.
•
Working Groups (Complaint mechanism
• On 18 June 2007, the Human Rights Council adopted resolution 5/1
entitled “Institution-Building of the United Nations Human Rights
Council”
• It establishes a new complaint procedure to address consistent patterns
of gross and reliably attested violations of all human rights and all
fundamental freedoms occurring in any part of the world and under any
circumstances.
• The complaint procedure addresses communications submitted by
individuals, groups, or non-governmental organizations that claim to be
victims of human rights violations or that have direct, reliable knowledge
of such violations.

• There are two working groups: Working group on communication and

Working group on situations
 UPR
• Universal Periodic Review-(UPR)
• The Universal Periodic Review (UPR) is a unique process
which involves a review of the human rights records of all
UN Member States.
• The UPR is a State-driven process which provides the
opportunity for each State to declare what actions they
have taken to improve the human rights situations in their
countries and to fulfil their human rights obligations.
• As one of the main features of the Council, the UPR is
designed to ensure equal treatment for every country
when their human rights situations are assessed.
• The UPR was created through the UN General Assembly on 15
March 2006 by resolution 60/251, which established the
Human Rights Council itself.
• By October 2011, has reviewed the human rights records of all
193 UN Member States. Currently, no other universal
mechanism of this kind exists.
• The UPR is one of the key elements of the Council which
reminds States of their responsibility to fully respect and
implement all human rights and fundamental freedoms. The
ultimate aim of this mechanism is to improve the human rights
situation in all countries and address human rights violations
wherever they occur.
• With the support of the Office of the United Nations High
Commissioner for Human Rights (OHCHR), special procedures
undertake country visits;
• act on individual cases and concerns of a broader, structural nature
by sending communications to States and others in which they
bring alleged violations or abuses to their attention; conduct
thematic studies and convene expert consultations, contribute to
the development of international human rights standards, engage
in advocacy, raise public awareness, and provide advice for
technical cooperation. Special procedures report annually to the
Human Rights Council; the majority of the mandates also
reports to the General Assembly. Their tasks are defined in the
resolutions creating or extending their mandates.
 Special procedures
• The special procedures of the Human Rights Council are
independent human rights experts (Special
Rapporteurs, Independent Experts and Chairs of
Working Groups) with mandates to report and advise
on human rights from a thematic or country-specific
perspective.
• The system of Special Procedures is a central element
of the United Nations human rights machinery and
covers all human rights: civil, cultural, economic,
political, and social. As of 1 August 2017, there are 44
thematic and 12 country mandates.
 Advisory Committee
• Established by Resolution 5/1 paragraphs 65 to 84.
• The Human Rights Council Advisory Committee functions as a think-tank for
the Council and work at its direction.
• It meets twice a year, for one week in February immediately before the March
session of the Council and for one week in August.
• Mandate & Functions
• To provide expertise to the Council in the manner and form requested by it.
• It may also propose within the scope of the work set out by the Council, for the
latter’s consideration and approval, suggestions for further research proposals.
• In its work, the Committee should be implementation-oriented and the scope
of its advice should be limited to thematic issues pertaining to the mandate of
the Council, namely promotion and protection of all human rights.
• It shall not adopt resolutions or decisions
 TREATY BASED MECHANISM
• Human Rights Committee (CCPR)
• Committee on Economic, Social and Cultural Rights (CESCR)
• Committee on the Elimination of Racial Discrimination (CERD)
• Committee on the Elimination of Discrimination Against Women
(CEDAW)
• Committee against Torture (CAT)
• Sub Committee on Prevention of Torture (SPT)
• Committee on the Rights of the Child (CRC)
• Committee on Migrant Workers (CMW)
• Committee on the Rights of Persons with Disabilities (CRPD)
• Committee on the Enforced Disappearance (CED)
 Skip the African System
• *****
 Human Rights-Tanzania
Pre independence
• Read Chris Peter Maina Human Rights in Tanzania
• Prior to independence one could not talk about human rights
• This is because colonial masters thought that entartaining human
rights would defeat their objectives
• They intended to obtain raw materials so as to feed their industries
• They wanted people to work and the question of human rights was
irrelevant
• Racial discrimination was accepted and this was clear in terms of
jobs held, living standards and even living places, for instance
uzunguni, uhindini and uswahilini.
• It extended to the laws in the administration of justice and court
system.
 After independence
• Incorporation of the Bill of Rights in the Tanzanian Constitution
was not a smooth process
• After independence was again a struggle to incorporate the Bill of
Rights and this time objections was from our own leaders
• Note that before they left, in 1960 British were insisting that
Tanganyika should incorporate Bill of Rights in its new
Constitution
• Why: They wanted to protect their remaining subjects.
• This was rejected by the Tanganyika African National Union
(TANU)
• WHY: Inclusion of the Bill of rights was going to hamper
development in particular with the ‘infant government’
• TANU leaders also argued that Bill of Rights could be used by the
judiciary to frustrate the government by declaring its actions
unconstitutional.
• The then Prime Minister, Rashid Kawawa characterised human
rights as ‘a luxury which merely invites conflicts.’
• The lack of Bill of Rights in the Constitution had impact on
individual rights, the rule of law including facilitating the existence
of one party and enactment of oppressive laws.
• These laws were passed because we did not have a yardstick
against which they could have been tested, for example Prevention
of Detention Act 1962, Regional Commissioners Act 1962;Area
Commissioners Act 1962;Corporal Punishment Act and so on
• After independence some organisations were active.
• some of these were established as part of the struggle for the
independence
• Some were civil societies and other were political in nature:
• However, later on the leaders of these organisation were being
detained, harassed and internally deported, particularly those who
did not agree to be merged within the ruling party
• The single party prevailed with what came to be known as party
supremacy
• In 1965 the interim constitution declared Tanzania a one-party state
(the same recognised ASP in Zanzibar)
• This continued until 1977 when TANU and ASP were merged to form
CCM.
• The 1965 interim Constitution also recognised some rights in its
preamble
• Such rights lacked legal force because the preamble is not part of the
Constitution (Read Hatimali Adamjee v East African Post and
Telecommunications Corporation (1973) LRT no 6
• However the interim constitution had a TANU constitution appended
to it as a schedule
• The schedule has bill of rights like those in the preambe
• Note that a schedule is part of the Constituion and it was used to
enforce human rights during this perid (see Thabit Ngoka vRegional
Fisheries Officer (1973) LRT no 23
• With the adoption of the 1977 Constitution the TANU Constitution
(as a schedule) was removed.
• In 1983 there were proposals to amend the Constitution
• The CCM-NEC prepared its proposals and announced
without public participation/consultation
• Three factors are relevant in adopting Bill of rights:
• 1.There were views through media by different people that
Bill of Rights was to included
• 2.Zanzibar also had pressure on the matter because its
independence Constitution had bill of rights
• 3.There were some developments relating to human rights
particularly with the Adoption of the African Charter on
Human and Peoples Rights in 1981
 The Bill of Rights in 1984-Fifth
Constitutional amendment
• The Bill of Rights was incorporated in the Constitution in
1977
• However its operation (justiciability) was suspended for
three years through Constitutional (Consequential,
Transitional and Temporary Provisions Act No 16 of 1984
• This was intended to allow the government to put its house
in order.
• This notwithstanding, no law reforms were taking place
• It was only in 1991/92 that Nyalali Commission (on multi-
party system) came up with recommendations on repeal of
40+ oppresive pieces of legislation
 The CHRGG
• Establishment: Article 129 of the Constitution
• Functions outlined in article 130
 Human rights and criminal law
• With regard to domestic law criminal law was
traditionally regarded to be entirely in the
domain of a particular state.
• Penal law of various states had to describe the
wrongs and the punishments when such
wrongs were committed
• Such wrongs or punishments were not
necessarily in line with human rights
• With the emergence and development of human rights however,
domestic criminal law has been subject to human rights law.
• A number of principles articulated in states constitutions as well as penal
law are derived from UDHR, ICCPR and other soft law instruments such as:
• Code of Conduct for Law Enforcement Officials, G.A. res. 34/169, annex,
34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979).
• Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials, Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N.
Doc. A/CONF.144/28/Rev.1 at 112 (1990).
• Basic Principles on the Role of Lawyers, Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, Havana, 27
August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118
(1990).
• Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc.
A/CONF.144/28/Rev.1 at 189 (1990).
• Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September
1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985).
• United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), G.A.
res. 45/110, annex, 45 U.N. GAOR Supp. (No. 49A) at 197, U.N. Doc. A/45/49 (1990).
• Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. res.
40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985)
• Basic Priciples on the use of restorative justice programmes in criminal matters, ECOSOC Res.
2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000).

• Treatment of offenders, right to be heard, prohibition of torture, prohibition of some

punishments such as death sentence and corporal punishment are among some aspects of
human rights in criminal law.
• At the international level, traditionally individuals have been
subject to the jurisdiction of the states in which they live.
• Ill treatment of foreigners, foreign diplomats were prosecuted
within the state where the acts were committed (under the
doctrine of territorial jurisdiction)
• These prosecution was only possible if national legislation had
such provisions and provided they were willing to prosecute
• If not a victim was entitled to claim from the offending state that
the offender be prosecuted or to claim for compensation
• Individuals in breach of international law could not be called to
account for by a foreign state unless they were its nationals.
• Few exceptions existed in relation to offences of piracy
• Conflicts are likely to cause and in fact they do
cause human rights violations
• Loss of life, mutilation, amputation, rape and
mass of movement of people fleeing their
countries are among the effects of conflicts in
different countries.
• Conflicts in Rwanda, Burundi, DRC and other
countries in Africa and elsewhere are just
examples
• Violation of Human rights in conflict exist
despite the existence of the international law
on the use of force
• It is for this reason that international criminal
law has to come in.
• Human rights standards inform and inteprete
the application of the laws of war
• It is also used to prosecute those who violate
human rights standards during armed conflicts
• Nurenmberg Military tribunals and individual
responsibility
• At international level do human rights
promote or defeat human rights? For
victims/perpertators? Consider: nullum
crimen sine lege)
 THE AFRICAN HUMAN RIGHTS SYSTEM
• Regional systems
• Europe, America, Africa and Arab League
• Each region operates under an institution with broad mandate that
include in it an aspect of human rights
• These are Council of Europe; Organisation of American states (OAS)
and AU
• Each region has norms and institutions dealing with human rights
• Europe: European Convention on Human Rights and Fundamental
Freedoms 1950 with a number of Protocols
• American Convention on Human Rights 1969
• The African Charter on Human and Peoples Rights: The Banjul
Charter (Human and Peoples’ rights) 1981
• Arab state has a bit different approach regarding
norms and institutions on human rights
• They believe that Quran and other religious norms are
sources of norms regulating social life
• A number of African states are party: Comoros,
Djibout, Egypt, Libya, Mauritania, Morocco, Somalia,
Sudan Tunisia
• They feature in both League of Arabs and Organisation
of Islamic Cooperation
• They have the Arab Charter on Human Rights
• Institutions: European Court of Human Rights
• The America, just like Africa has both the
Commission and Court
• In Africa The African Commission of Human
and Peoples Rights as well as the African Court
on Human and Peoples Rights established
under article 1 of the Protocol to the African
Charter on the establishment of the African
Court of Human and Peoples Rights 1998
• The African commission- protective mandate
• -individual communications
• This is one of the mechanisms to hold states responsible under the
African charter
• Describe procedures here including exhausting domestic local
remedies, admissibility, standing-art 56
• Communication may be submitted by another person other than the
victim-see art 56 of the Charter
• The commission also has accepted communications in the public
interest,(actio popularis), see Ogoniland case.
• This approach is particularly relevant with regard to the concept of
Peoples rights under the Charter that recognises individual as well as
group rights
• Powers of the Commission
• It may issue interim measures
• Interim measures not stated in the Charter
• See Ken Sarowiwa (litigating under Survival of the Ogoni People)
MOSOP
• Sarowiwa and others were charged in connection with the death of 4
leaders of Ogoni
• They were sentenced to death by the domestic court
• The Commission in 1995 issues interim measures (RULE111) pending
finalisation of communication and negotiations with the government
• The Nigerian government executed them
• In its decision in 1998 the commission illustrated the reationale of
interim measures
• Amicable settlement
• The commission has no power to amicably
settle matters except when dealing with
interstate communications (article 52)
• However the commission has used amicable
settlement for individual communications
based on article 60 of the Charter which
allows the commission to draw on the
experience of other quasi judicial bodies
• Admissibility, art 56 of the Charter and see the
Case of Jawara v The Gambia
• Merits-see the rules
• Promotional mandate- art 45 of the charter (read the
content of this article)
• State reporting-initial report and periodic reports
• NGOs should be involved in preparation of reports
• Concluding observations
• Special mechanisms-special rapporteurs, working
groups etc-art 45 and 46, eg special rapporteur on
extra judicial, summary or arbitrary execution in Africa,
special rapporteur on prison and conditions of
detention in Africa
• The protective mandate of the African Commission is
complemented by the African Court (see Art 30 and 45 (2) of
the African Charter; article 2 of the Protocol and rule 114 of the
Rules of Procedure of the ACHR)
• Communications may be submitted by the individuals (art 5 of
the Protocol)
• -The Commission (Rule 218)
• Direct Access in terms of art 34 (6) of the AfCharter.
• Referral to the commission which does not require compliance
with art 5 (3) of the Protocol and art34 (6) gives individuals a
direct avenue to file communications to the commission