HUMAN RIGHTS LAW CASES

UNIT 3 (ICCPR)

Right to self-determine

Katangese Peoples’ congress v Zaire

Principle: The Commission believes that self-determination may be exercised in any

of the following ways independence, selfgovernment, local government, federalism,
confederalism, unitarism or any other form of relations that accords with the wishes
of the people but fully cognisant of other recognised principles such as sovereignty
and territorial integrity.

General Comment No. 31: This general comment replaces general comment No. 3,
reflecting and developing its principles. The general non-discrimination provisions of
article 2, paragraph 1, have been addressed in general comment No. 18 and general
comment No. 28, and this general comment should be read together with them.
Article 2 requires that States parties adopt legislative, judicial, administrative,
educative and other appropriate measures in order to fulfil their legal obligations. The
Committee believes that it is important to raise levels of awareness about the
Covenant not only among public officials and State agents but also among the
population at large.

THE RIGHT TO LIFE

Lubuto v Zambia Communication

Principle: if the requirements for the application of the death penalty are not met
there would be a violation of the right to life.

Chisanga v Zambia Communication

Principle: The Committee further found that Zambia’s imposition of the death
penalty violated Chisanga’s right to life (article 6) because the crime of aggravated
robbery with use of firearms was not a “most serious” crime allowing for the death
penalty under article 6(2). This was consistent with a previous ruling by the
Committee that aggravated robbery was not a crime that should receive the death
penalty.

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Protection from Torture, Cruel, Inhuman and Degrading Treatment

General Comment No. 20: The Committee notes that it is not sufficient for the
implementation of article 7 to prohibit such treatment or punishment or to make it a
crime. States parties should inform the Committee of the legislative, administrative,
judicial and other measures they take to prevent and punish acts of torture and cruel,
inhuman and degrading treatment in any territory under their jurisdiction. The
Committee should be informed how States parties disseminate, to the population at
large, relevant information concerning the ban on torture and the treatment
prohibited by article 7. Enforcement personnel, medical personnel, police officers
and any other persons involved in the custody or treatment of any individual
subjected to any form of arrest, detention or imprisonment must receive appropriate
instruction and training. States parties should inform the Committee of the instruction
and training given and the way in which the prohibition of article 7 forms an integral
part of the operational rules and ethical standards to be followed by such persons.

Media Rights Agenda v Nigeria, Communication

Principles: the African Commission stated that the term ‘cruel, inhuman and
degrading punishment or treatment’ is to be interpreted so as to extend the widest
possible protection against abuse, whether physical or mental.

Modise v Botswana, Communication

Principle: the African Commission elaborated further and noted that ‘exposing
victims to personal sufferings and indignity violates the right to human dignity’. It
went on to state that ‘personal suffering and indignity can take many forms, and will
depend on the particular circumstances of each case.

Article 1 of the United Nations Convention against Torture defines Torture:

“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity.”

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Limitations on Human Rights

Principle of Proportionality

Handyside v UK

Principle: The Court further stated that it was necessary to pay the utmost attention
to the principles that characterize a ‘democratic society’. In particular, it held that,
“[f]reedom of expression constitutes one of the essential foundations of such a
society, one of the basic conditions for its progress and for the development of every
man. Subject to [legitimate restrictions] it is applicable not only to “information” or
“ideas” that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of
the population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society”. This means,
amongst other things, that every “formality”, “condition”, “restriction” or “penalty”
imposed in this sphere must be proportionate to the legitimate aim pursued.”

Roy Clarke V Attorney General

Principle: The test of proportionally entails that a measure which interferes with
human rights, must not only be authorized by law, but must correspond to a pressing
social need and should go no further than is strictly necessary in a pluralistic society.
Though deportation is authorized by law, in this case it was an unlawful and
excessive measure.

Margin of Appreciation

Handyside v UK

Principle: The Court considered that there was no European consensus on the
protection of public morals, particularly as regards children. Therefore, States should
be left a margin of appreciation in interpreting whether a particular measure is
‘necessary’. At the same time, the Court stressed that the test of ‘necessity’ was a
strict one: “[W]hilst the adjective ‘necessary’ … is not synonymous with
‘indispensable’ … the words ‘absolutely necessary’ and ‘strictly necessary’ …,
neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’,
‘reasonable’ or ‘desirable’.

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Derogations

General Comment No. 29: Measures derogating from the provisions of the
Covenant must be of an exceptional and temporary nature. Before a State moves to
invoke article 4, two fundamental conditions must be met: the situation must amount
to a public emergency which threatens the life of the nation, and the State party must
have officially proclaimed a state of emergency. The latter requirement is essential
for the maintenance of the principles of legality and rule of law at times when they
are most needed. When proclaiming a state of emergency with consequences that
could entail derogation from any provision of the Covenant, States must act within
their constitutional and other provisions of law that govern such proclamation and the
exercise of emergency powers; it is the task of the Committee to monitor the laws in
question with respect to whether they enable and secure compliance with article
4. In order that the Committee can perform its task, States parties to the Covenant
should include in their reports submitted under article 40 sufficient and precise
information about their law and practice in the field of emergency powers.

Public Emergency

Lawless v Ireland

Principle: it must be actual or imminent;

1. its effects must involve the whole nation;

2. the continuance of the organised life of the community must be threatened;
and
3. the crisis or danger must be exceptional, in that the normal measures or
restrictions, permitted by the Convention for the maintenance of public safety,
health and order, are plainly inadequate.
Reservations

General Comment No. 24: For these reasons the Committee has deemed it useful
to address in a General Comment the issues of international law and human rights
policy that arise. The General Comment identifies the principles of international law
that apply to the making of reservations and by reference to which their acceptability
is to be tested and their purport to be interpreted. It addresses the role of States
parties in relation to the reservations of others. It further addresses the role of the

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Committee itself in relation to reservations. And it makes certain recommendations to
present States parties for a reviewing of reservations and to those States that are not
yet parties about legal and human rights policy considerations to be borne in mind
should they consider ratifying or acceding with particular reservations.

Individual Complaints

Roger Chongwe v Zambia Communication

Principle: Under article 2, paragraph 3(a), of the Covenant, the State party is under
the obligation to provide Mr Chongwe with an effective remedy and to take adequate
measures to protect his personal security and life from threats of any kind. The
Committee urges the State party to carry out independent investigations of the
shooting incident, and to expedite criminal proceedings against the persons
responsible for the shooting. If the outcome of the criminal proceedings reveals that
persons acting in an official capacity were responsible for the shooting and hurting of
the author, the remedy should include damages to Mr Chongwe. The State party is
under an obligation to ensure that similar violations do not occur in the future.

Lubuto v Zambia Communication

Principle: The Committee is of the view that Mr. Lubuto is entitled, under article 2,
paragraph 3(a), of the Covenant to an appropriate and effective remedy, entailing a
commutation of sentence. The State party is under an obligation to take appropriate
measures to ensure that similar violations do not occur in the future.

ICCPR Law in Zambia

Zambia Sugar Plc v Fellow Nanzaluka

Principle: The Supreme Court held that international instruments on any law
although ratified or acceded to by the state cannot be applied unless they are
domesticated.

Sara Longwe v Intercontinental Hotel

Principle: “Before I end, I have to say something about the effect of International
Treaties and Conventions which the Republic of Zambia enters into and ratifies. The
African Charter on Human Rights and People’s Rights and the Convention on the
Elimination of All Discrimination against women etc (ante) are two such examples. It

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is my considered view that ratification of such documents by a nation state without
reservations is a clear testimony of the willingness by that State to be bound by the
provisions of such a document. Since there is that willingness, if an issue comes
before this court which would not be covered by local legislation but would be
covered by such international document, I would take judicial notice of that Treaty or
Convention in my resolution of the dispute.” Thus, despite the Court’s avoidance of
international law in its determination of the Longwe case, the opinion emphasized
the role and importance of such international obligations, including CEDAW. In
deciding an issue not covered by domestic legislation, a court could take judicial
notice of international treaties and conventions, when they had been ratified without
reservation by a state, indicating its willingness to be bound by their
provisions. Article 11 of the Constitution gives to everyone who is resident in Zambia,
whether a citizen or not, a right to be protected by the law. Therefore, a person who
felt that his or her rights had been infringed was entitled to seek an appropriate order
before the courts.

Unit 4(Civil and Political Rights in Zambia)

Right to life

Rosalyn Thandiwe Zulu v. The People(Self-defence)

Principle: Bearing in mind that the deceased was person capable of extreme
violence, the appellant was justified in believing that she would be assaulted and the
gun taken from her and used against her if she did not first use the weapon.

The People V Gulshan And Two Others

Principle: An abortion is lawful where it is done in good faith and on reasonable

grounds, with adequate knowledge, to save life or prevent grave permanent injury to
the physical or mental health of the mother. A doctor is not justified in termination
merely because he has a bona fide belief, even on adequate grounds, that the
person will self-induce abortion or will go to a back-street abortionist, or even that the
person may commit suicide. It would be otherwise were the self-induced abortion, or
back street abortion, or the suicide a likely result of a mental disorder caused or
aggravated by the continuance of the pregnancy.

The Right to Liberty

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General Comment No. 35: The right to security of person protects individuals
against intentional infliction of bodily or mental injury, regardless of whether the
victim is detained or non-detained. For example, officials of States parties violate the
right to personal security when they unjustifiably inflict bodily injury. The right to
personal security also obliges States parties to take appropriate measures in
response to death threats against persons in the public sphere, and more generally
to protect individuals from foreseeable threats to life or bodily integrity proceeding
from any governmental or private actors. States parties must take both measures to
prevent future injury and retrospective measures, such as enforcement of criminal
laws, in response to past injury. For example, States parties must respond
appropriately to patterns of violence against categories of victims such as
intimidation of human rights defenders and journalists, retaliation against witnesses,
violence against women, including domestic violence, the hazing of conscripts in the
armed forces, violence against children, violence against persons on the basis of
their sexual orientation or gender identity, and violence against persons with
disabilities. They should also prevent and redress unjustifiable use of force in law
enforcement, and protect their populations against abuses by private security forces,
and against the risks posed by excessive availability of firearms. The right to security
of person does not address all risks to physical or mental health and is not implicated
in the indirect health impact of being the target of civil or criminal proceedings.
Arrest or detention as punishment for the legitimate exercise of the rights as
guaranteed by the Covenant is arbitrary, including freedom of opinion and
expression (art. 19), freedom of assembly (art. 21), freedom of association (art. 22),
freedom of religion (art. 18) and the right to privacy (art. 17). Arrest or detention on
discriminatory grounds in violation of article 2, paragraph 1, article 3 or article 26 is
also in principle arbitrary. Retroactive criminal punishment by detention in violation of
article 15 amounts to arbitrary detention. Enforced disappearances violate numerous
substantive and procedural provisions of the Covenant and constitute a particularly
aggravated form of arbitrary detention. Imprisonment after a manifestly unfair trial is
arbitrary, but not every violation of the specific procedural guarantees for criminal
defendants in article 14 results in arbitrary detention.

Right to Personal Liberty

Martin Nyandoro V the AG

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Principle: Where the plaintiff fails to plead or state his professional occupation or
any other circumstances which would normally be relevant to consider in making an
award of damages, consideration would be based purely on the basis of unlawful
deprivation of liberty of the humblest citizen.

Valentine Shula Musakanya v the AG.

Principle: The provisions of s. 336 of the Criminal Procedure Code must be read as
a whole and since a person convicted of a capital offence cannot reasonably be
admitted to bail, he also cannot independently be treated as an unconvicted
prisoner.

Protection from slavery and forced labour

General Comment No. 20: The Committee notes that it is not sufficient for the
implementation of article 7 to prohibit such treatment or punishment or to make it a
crime. States parties should inform the Committee of the legislative, administrative,
judicial and other measures they take to prevent and punish acts of torture and cruel,
inhuman and degrading treatment in any territory under their jurisdiction. The
Committee should be informed how States parties disseminate, to the population at
large, relevant information concerning the ban on torture and the treatment
prohibited by article 7. Enforcement personnel, medical personnel, police officers
and any other persons involved in the custody or treatment of any individual
subjected to any form of arrest, detention or imprisonment must receive appropriate
instruction and training. States parties should inform the Committee of the instruction
and training given and the way in which the prohibition of article 7 forms an integral
part of the operational rules and ethical standards to be followed by such persons.

Gertrude Munyonsi, Attorney-general And Catherine Ngalabeka

Principle: The Police can only arrest for offences under the law; Police have no
power to arrest people for the purposes of making inquiries. The woman constable
was a servant of the state which was liable for her actions.

The right to Privacy

Stanely Kingaipe Charles Chookole v Attorney General

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Principle: The petitioner’s right to protection from inhuman and degrading treatment
under Article 15 of the Constitution was violated because the petitioners were
subjected to mandatory testing without their consent and were put on ARVs
unknowingly. The petitioners are entitled to damages in the sum of K10,000,000
each, payable with interest at 10% from the date of the writ to date of judgment, and
thereafter at the Bank of Zambia lending rate until full payment.

Patel V The Attorney-General

Principle: The right to privacy is not an absolute right in that it is subject to limitation
clauses (see 17 (2) of the Constitution) and is subject to derogations (see Art 25).

Protection of the Law

Major Isaac Masonga v the People

Principle: It is trite law and a constitutional duty for the prosecution to guarantee a
fair trial and a fair trial starts with investigations. Any shortcomings in the
investigations may seriously jeopardize the right to a fair proceeding, and thereby
also prejudice the accused person’s rights to be presumed innocent.

Victoria Groceries v the People

Principle: The phrase "right to reply" merely refers to the right to address the court
not before but after the other party. The right of address cannot be denied to a party
simply because the other party has chosen not to exercise his right of address.

Freedom of Religion

kelvin Hang'andu v the Law Association of Zambia

Principle: There is no rule of law that prohibits a legal practitioner from appearing in
person.

Kachasu V Att.-Gen

Principle: A person is hindered in the enjoyment of his freedom of conscience by

being put under coercion to sing the national anthem against her religious beliefs,
and by being suspended from any Government or aided school because of her
refusal, on religious grounds, to sing the national anthem or salute the national flag.

Right to freedom of expression

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Resident Doctors Association of Zambia and others v Attorney General

Principle: The rights to free speech and freedom to assemble are not only
fundamental, but central to the concept and ideal of democracy.

Roy Clarke V Attorney General

Principle: any curtailment thereof has to be clear and precise, as to what is

expressly forbidden and has to be interpreted narrowly in conformity to the limitation
clause

Freedom of assembly and association

Resident Doctors Association of Zambia and others v Attorney General

Principle: The rights to free speech and freedom to assemble are not only
fundamental, but central to the concept and ideal of democracy.

Christine Mulundika and 7 others v the people

Held: Section 5(4) of the Public Order Act Cap 104 contravenes arts 20 and 21 of
the Constitution and is null and void.

Protection of freedom of movement

Cuthbert Mambwe Nyirongo v The Attorney General

Principle: A Zambian citizen has the right to the issue of a passport, subject to the
restrictions referred to in the Constitution of Zambia. There is therefore no law
applicable to the circumstances of this case which enables the appellant to be
deprived of his right to the issue or possession of a passport.

Protection from discrimination

Edith Zewelani Nawakwi (Female) V the Attorney-General

Principle: A mother of a child does not need to get the consent of the father to have
her child/ren included in her passport or for him/or them to be eligible for obtaining
passports or travel documents.

Absolute and Non Derogable Rights

Bob Shilling Zinka v the Attorney General

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Held: Where a power is being exercised to deprive a person of the rights and
freedoms of an individual the exclusion of the "audi alteram Partem" rule cannot be
implied, it must be express to oust the presumption.

UNIT 5 (ICESCR)

RIGHT TO WORK

General Comment No. 18: The right to work, as guaranteed in the ICESCR, affirms
the obligation of States parties to assure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly. This definition
underlines the fact that respect for the individual and his dignity is expressed through
the freedom of the individual regarding the choice to work, while emphasizing the
importance of work for personal development as well as for social and economic
inclusion. International Labour Organization Convention No. 122 concerning
Employment Policy (1964) speaks of “full, productive and freely chosen
employment”, linking the obligation of States parties to create the conditions for full
employment with the obligation to ensure the absence of forced labour.
Nevertheless, for millions of human beings throughout the world, full enjoyment of
the right to freely chosen or accepted work remains a remote prospect. The
Committee recognizes the existence of structural and other obstacles arising from
international factors beyond the control of States which hinder the full enjoyment of
article 6 in many States parties.

RIGHT TO JUST AND FAVOURABLE WORKING CONDITIONS

General Comment No. 23: In the public sector, States parties should introduce
objective standards for hiring, promotions and terminations that seek to achieve
equality, particularly between men and women. Public sector promotions should be
subject to impartial review. For the private sector, States parties should adopt
relevant legislation, such as comprehensive non-discrimination legislation, to
guarantee equal treatment in hiring, promotions and terminations, and undertake
surveys to monitor changes over time. Article 7(d): Rest, leisure, reasonable
limitation of working hours and periodic holidays with pay, as well as remuneration
for public holidays. Rest and leisure, limitation of working hours as well as paid
periodic holidays help workers to maintain an appropriate balance between
professional, family and personal responsibilities and to avoid work-related stress,

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accidents and disease. This also promotes the realization of other Covenant rights
and therefore, though States parties have flexibility in light of the national context,
they are required to set minimum standards that must be respected and cannot be
denied or reduced on the basis of economic or productivity arguments. States parties
should introduce, maintain and enforce laws, polices and regulations to cover
several factors.

RIGHT TO AN ADEQUATE STANDARD OF LIVING

FOOD

General Comment No. 12: As part of their obligations to protect people’s resource
base for food, States parties should take appropriate steps to ensure that activities of
the private business sector and civil society are in conformity with the right to food.

HOUSING

General Comment No. 4: Legal security of tenure. Tenure takes a variety of forms,
including rental (public and private) accommodation, cooperative housing, lease,
owner-occupation, emergency housing and informal settlements, including
occupation of land or property. Notwithstanding the type of tenure, all persons should
possess a degree of security of tenure which guarantees legal protection against
forced eviction, harassment and other threats. States parties should consequently
take immediate measures aimed at conferring legal security of tenure upon those
persons and households currently lacking such protection, in genuine consultation
with affected persons and groups.

RIGHT TO HEALTH

GEORGE PETER MWANZA and MELVIN BEENE vs ATTORNEY GENERAL

Principle: the learned judge in the lower court based her rejection of prisoners’ claim
before her on the premise that although they were approved, they were not
justiciable as they fall under article 112(d) of the constitution of Zambia which dealt
with the directive principles of state policy. Although the conclusion of the learned
judge appears to have a prima facie appeal, it was in truth not anchored in the
correct factual position. The clear factual position is that not all claims of the

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prisoners were grounded on article 112(d) nor where they all in fact claims to
economic social and cultural rights.

It was distinguished that the two types of rights are different, civil and political
include; the right to life, to dignity, to free speech, to movement, to privacy to fair trial
freedom, against torture, against cruel inhuman and degrading treatment or
punishment and against discrimination. These are rights that are replicated in the bill
of right of the constitution and are ipso facto justiciable. While on the other hand,
economic, social and cultural rights include; the right to work, the right to an
adequate standard of living to physical and mental health, the right to social security,
the right to a healthy environment and the right to education. The social economic
cultural rights do not exist in the bill of rights but, however, part ii of the constitution
provides for national values, principals and economic policies in article 8 to 10. So
basically, listing economic, social and cultural rights in the directive principles of the
state policy or national values, principles and economic principals, makes them
rights which government will strive to achieve based on resource availability.

General Comment No. 14: Economic accessibility (affordability): health facilities,

goods and services must be affordable for all. Payment for health-care services, as
well as services related to the underlying determinants of health, has to be based on
the principle of equity, ensuring that these services, whether privately or publicly
provided, are affordable for all, including socially disadvantaged groups. Equity
demands that poorer households should not be disproportionately burdened with
health expenses as compared to richer households; Information accessibility:
accessibility includes the right to seek, receive and impart information and ideas
concerning health issues. However, accessibility of information should not impair the
right to have personal health data treated with confidentiality;

Right to Education

General Comment No. 13: In relation to article 13 (2), States have obligations to
respect, protect and fulfil each of the “essential features” (availability, accessibility,
acceptability, adaptability) of the right to education. By way of illustration, a State
must respect the availability of education by not closing private schools; protect the
accessibility of education by ensuring that third parties, including parents and
employers, do not stop girls from going to school; fulfil (facilitate) the acceptability of

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education by taking positive measures to ensure that education is culturally
appropriate for minorities and indigenous peoples, and of good quality for all; fulfil
(provide) the adaptability of education by designing and providing resources for
curricula which reflect the contemporary needs of students in a changing world; and
fulfil (provide) the availability of education by actively developing a system of
schools, including building classrooms, delivering programmes, providing teaching
materials, training teachers and paying them domestically competitive salaries.

Right to Culture

General Comment No.21: The Committee considers that culture, for the purpose of
implementing article 15 (1) (a), encompasses, inter alia, ways of life, language, oral
and written literature, music and song, non-verbal communication, religion or belief
systems, rites and ceremonies, sport and games, methods of production or
technology, natural and man-made environments, food, clothing and shelter and the
arts, customs and traditions through which individuals, groups of individuals and
communities express their humanity and the meaning they give to their existence,
and build their world view representing their encounter with the external forces
affecting their lives. Culture shapes and mirrors the values of well-being and the
economic, social and political life of individuals, groups of individuals and
communities.

Kaniki v Jairus

Principle: the right to culture is appliable as long as it is not contrary to natural

justice.

UNIT 6 (African Human Rights System)

Concept of “People”

Gunme and Others v Cameroon

Held: The Commission decided that whether the South Cameroonian people were
denied the right to self-determination in 1961 at the time of annexation to Cameroon
was outside of its temporal jurisdiction. However, the Commission was able to
consider the allegations of human rights abuse, if it were found that the effects of
such abuses continued after the entry into force of the Charter.

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Protects all three generations of rights

Social and Economic Rights Action Centre (SERAC) and Another v Nigeria
where it was held that: “The uniqueness of the African situation and the special
qualities of the African Charter on Human and Peoples' Rights imposes upon the
African Commission an important task. International law and human rights must be
responsive to African circumstances. Clearly, collective rights, environmental rights,
and economic and social rights are essential elements of human rights in Africa. The
African Commission will apply any of the diverse rights contained in the African
Charter. It welcomes this opportunity to make clear that there is no right in the
African Charter that cannot be made effective”.

Centre for Minority Rights Development and Others v Kenya

Principle: The decision is also noteworthy because the Commission emphasizes

the African Charter's protection for collective claims to land rights by indigenous
communities.

Claw Back Clauses

Media Rights Agenda and Others v Nigeria

Held: "For a State to avail itself of this plea, it must show that such a law is
consistent with its obligations under the Charter". It is therefore not enough for a
State to plead the existence of a law, it has to go further to show that such a law falls
within the permissible restrictions under the Charter and therefore in conformity with
its Charter obligation. No such reasons have been adduced in the instant case. The
Commission therefore rejects this argument.

No Derogations

Media Rights Agenda and Others v Nigeria

Principle: The African Charter does not contain a derogation clause. Therefore, the
limitations on the rights and freedoms enshrined in the Charter cannot be justified by
emergencies and special circumstances. The only legitimate reasons for limitations
to the rights and freedoms of the Charter are found in article 27(2)

Limitations on Rights

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Kemai and Others v Attorney General and Others

Held: The Court also held that individual or group rights must be balanced with
environmental protection. Traditionally, the Ogiek people participated in the
conservation of the forest; however, their development from a group of nomadic
hunter-gatherers to a structured, permanent community had made them an
environmental threat. The protection of the environment through legislation was in
the interest of all citizens because natural resources were necessary to the
enjoyment of fundamental rights.

Constitutional Rights Project and Others v Nigeria

Held: finds violations of Articles 6, 7(1)(a) and (d) of the Charter; appeals to the
Government of Nigeria to charge the detainees, or release them.

Admissibility Criteria

1. Indicate their authors even if authors request anonymity

Dioumessi and Others v Guinea

Held: Recalling the provisions of Article 57 of the Charter and those of Rules 110
and 115 of the Rules of Procedure which stipulate that prior to any substantive
consideration, all communications must be brought to the knowledge of the State
concerned

2. Be compatible with the Constitutive Act of the AU or with the present

Charter
Constitutional Rights Project v Nigeria (II)

Held: Even if the required reviews of detention as provided for by the Act, are being
held, the Panel which conducts the review cannot be said to meet judicial standards
as majority of its members are appointed by the President (the Executive) and the
other three are also representatives of the executive branch. The Panel does not
have to justify the continued detention of individuals, but only issue orders in the
case of release.

3. Not be based exclusively on news disseminated through the mass

media
Jawara v The Gambia

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Principle: The Government claims that the communication should be declared
inadmissible because it is based exclusively on news disseminated through the
mass media, and specifically made reference to the attached letter of Captain Ebou
Jallow. While it would be dangerous to rely exclusively on news disseminated from
the mass media, it would be equally damaging if the Commission were to reject a
communication because some aspects of it are based on news disseminated
through the mass media. This is borne out of the fact that the Charter makes use of
the word "exclusively"

4. Be sent after exhausting local remedies, if any, unless it is obvious that

this procedure is unduly prolonged
Modise v Botswana

Held: It was decided to write to the author stressing the need for exhaustion of local
remedies as required by Article 56 of the Charter. He should also be advised to
contact the NGO Botswana Centre for Human Rights, which enjoys observer status
with the Commission for assistance. (Article 56 (5) of the Charter).

Kenya Human Rights Commission v Kenya

Held: The most recent information the Commission has, provided by the
complainants themselves, states that the communication is still pending before the
courts of Kenya. The complainant has therefore not exhausted all available local
remedies.

5. Are submitted within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized of the matter-
Kenya Human Rights Commission v Kenya

Held: The most recent information the Commission has, provided by the
complainants themselves, states that the communication is still pending before the
courts of Kenya. The complainant has therefore not exhausted all available local
remedies.

Summary of Jurisdiction

Personal Jurisdiction

Yogogombaye v Senegal

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Held: The Court notes, in this respect, that although presented by Senegal in its
written statement of defence as an objection on the ground of “inadmissibility”, its
first preliminary objection pertains, in reality, to lack of jurisdiction by the Court.

Temporal Jurisdiction

Lawyers of Human Rights v Swaziland

Held: The Commission has competence ratione loci to examine the case because
the petition alleges violations of rights protected by the African Charter, which have
taken place within the territory of a State Party to that Charter. It has competence
ratione materFae as the petition alleges violations of human rights protected by the
Charter, and lastly it has competence ratione temporis as the facts alleged in the
petition took place when the obligation to respect and guarantee the rights
established in the Charter was in force for the Kingdom of Swaziland. Given that
Swaziland signed the Charter in 1991 and later ratified on 15 September 1995, it is
clear that the alleged events continues to be perpetrated when the State became
under the obligation to respect and safeguard all rights enshrined in the Charter,
giving the Commission rationae temporis competence. The two stages of signature
and ratification of an international treaty provides states with the opportunity to take
steps to ensure that they make the necessary - domestic arrangements to ensure
that by the time they ratify a treaty the latter is in conformity with their domestic law.
When ratifying the Charter, the Respondent State was aware of the violation
complaint of and had the obligation to take all the necessary steps to comply with its
obligations under Article 1 of the Charter - to adopt legislative and other measures to
give effect to the rights and freedoms in the Charter. From the above, it is the
Commission’s opinion that it is competent to deal with the matter before it.

STATE LIABILITY FOR THE ACTIONS OF NON-STATE ACTORS

Malawi African Association and Others v Mauritania

Held: The commission urged the Government to, amongst other things: take
measures to ensure the restitution of the belongings looted from them at the time of
the expulsion: take the necessary steps for the reparation of and compensation of
victims; to take measures for the effective enforcement of laws prohibiting slavery in
Mauritania. This did not occur. Post-the decision, concern about the physical and

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mental health of political prisoners and the treatment of prisoners in pre-trial
detention continued. Slavery and forced labour continued also. Following a non-
violent military coup in August 2005, the human rights situation there has apparently
improved.

UNIT 7(Special UN Treaties)

Womens Rights

Edith Zewelani Nawakwi (Female) V the Attorney-General

Principle: A mother of a child does not need to get the consent of the father to have
her child/ren included in her passport or for him/or them to be eligible for obtaining
passports or travel documents.

Childrens Rights

R v Chinjamba

Principle: However due to Art 7 of the Constitution which recognises customary law
(Duality of laws), child marriages are legal in Zambia

Rights of Disabled people

Sela Brotherton (suing in her capacity as National Secretary of the Zambia

Federation of Disability Organisation) v Electoral Commission of Zambia

Principle: The respondent unlawfully limited the rights of the petitioner and other
persons with disabilities represented by the organization on whose behalf the action
was brought to exercise their franchise by not providing premises and services that
were accessible to persons with disabilities, contrary to Article 75 of the Constitution.

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