UNIVERSITY OF NAIROBI

FACULTY OF LAW

UNIVERSITY EXAMINATIONS 2022

THIRD YEAR EXAMINATION FOR THE DEGREE OF BACHELOR OF LAWS

GPR 324: HUMAN RIGHTS

DATE: MONDAY SEPTEMBER 19TH 2022 TIME: 9.00-12:00

ID 31322458
REG NO. G34/132669/2018
Special Exam

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Question 1

a. Skut has approached you claiming that the decision by FTV not to air his documentary
violates his fundamental freedoms. Please prepare a legal opinion supported with different
case laws on which of his rights has been violated (15 marks)

Article 33 of the Kenyan Constitution guarantees journalists their freedom of expression. This will
enable them to complete their work with confidence and free from fear.

The ability to express oneself encompasses the freedom of;

a. Seek, receive or impart information or ideas;

b. Artistic creativity; and
c. Academic freedom and freedom of scientific research.

The Constitution's Article 33 states that journalists are free to engage in any of the activities listed
as long as they do not include war propaganda, incitement to violence, hate speech, or support of
hatred based on any form of discrimination or ethnic provocation.

In addition to the provisions of the aforementioned Article 33, Articles 2(5) and (2) of the
Constitution state that any treaty or convention that Kenya has joined would be incorporated into
Kenyan law. This also applies to the broad principles of international law. As a result, Kenya is
obligated to abide by any additional free speech clauses that have been adopted by regional or
international treaties. African Charter on Human and People's Rights, Article 9. Article 19 of both
the International Covenant on Civil and Political Rights and the Universal Declaration of Human
Rights. Therefore, journalists in Kenya can also rely on these provisions to support their work.

According to the African Commission on Human and Peoples' Rights Declaration of Principles
on Freedom of Expression in Africa it declares as below;

‘‘The Guarantee of Freedom of Expression

1. Freedom of expression and information, including the right to seek, receive and impart
information and ideas, either orally, in writing or in print, in the form of art, or through any other

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form of communication, including across frontiers, is a fundamental and inalienable human right
and an indispensable component of democracy.

2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and
to access information without discrimination.

II Interference with Freedom of Expression

1. No one shall be subject to arbitrary interference with his or her freedom of expression.

2. Any restrictions on freedom of expression shall be provided by law, serve a

legitimate interest and be necessary and in a democratic society.’’

Following the aforementioned FTV, failed the implementation of fundamental freedom of

expression by barring the airing of Skut’s documentary. Unless the FTV authorities could have
proven the fact that airing the documentary could;

a. Threaten the national security

b. Advance or propagate war or discrimination against a particular people
c. Incite the public against a particular person or persons.

Furthermore, FTV by not allowing the airing of the documentary inhibits the right of access of
information. According to the African Commission on Human and Peoples' Rights Declaration of
Principles on Freedom of Expression in Africa subsection IV ‘Everyone has the right to access
information held by private bodies which is necessary for the exercise or protection of any right;
Skut can seek a remedy by approach the court and sue FTV for refusing or denying a chance to
disclose information as enshrined in the declaration.

Question 1

b. There have been calls for the arrest of the Great Leader of Luna as people are claiming that
his speech is violation of the homosexual’s rights. On his defence he’s claiming that his
speech falls within the ambits of free speech. Please write a memo advising whether the
speech by the Great Leader of Luna is protected speech or not.

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Protected Speech,

Although there seems to be a great need to have uncensored freedom of expression, the constitution
of Kenya does not let this issue unembodied. In my opinion the Kenyan 2010 constitution does not
prosper the freedom of expression [Speech]. The Black’s law dictionary defines freedom of speech
as, ‘giving people the right to speak without any restriction from the government.’ It is evident that
this is not the kind of freedom of speech any Government can ever want to inspire within its
governance principles either for both good and bad.

In the quest to achieve and implement the fundamental human rights some rights have to be
nominated over others. In such case there can come in more than rights but something superior
than the rights which might include, the hierarchy of the rights i.e can the freedom of speech
override the freedom of non-discrimination? Or can the pursuit of acquiring one jeopardize the
other?

According to the constitution;

Article 33 (2) The right to freedom of expression does not extend to--

(a) propaganda for war;

(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or

(ii) is based on any ground of discrimination specified or contemplated in Article 27
(4).

The above provides the boundaries of freedom of speech and does places strict inhabitants to the
fundamental freedom of speech.

Although the great leader of Luna had all the freedom to his belief, speech and religion his speech
adversely mobilized his followers against people who had a contrary belief to his. ‘The Great
Leader declared homosexuality as ‘being against the order of nature and in breach of the most

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fundamental principles of the Luna faith. Belgravian society should be prepared to take all
necessary steps to banish this practice and those who practise it from its society’

The call to banish the practice of homosexuality although it stemmed from a protected faith it did
not merit the test of aggression and call for discrimination. And actually, consequent to the call
some individuals suffered harm. Such information although important it needed to have been
censored from the public.

International Covenant on Civil and Political Right, has the following to hold in regard to Freedom
of expression under ‘article 19. 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:’

It’s therefore, important to assess the impact of once exercise of the freedom of expression to the
general Citizenry and not just within the ocean of one’s faith, belief and freedom.

QUESTION TWO

Some authors have traced the roots of human rights to the Westernized world. They claim that it
in these countries that the concept of human rights was born. According to this assertion,
traditional non-westernized States were clueless on the idea and concepts of human rights. Hence,
there is no way that they could observe or embrace the fundamental principles of human rights.

Human rights is an ancient salient principle that existed in every civilization with difference being
on how far they are appreciated and remedied in every society. The concept of tracing its origin to
Western world is viewed in a scholarly and more legally binding approach. To trace diligently the

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history of human rights we must look at it in three spheres, Politically, Legally [Law] and
philosophically.

During his years in exile in the Netherlands, John Locke (England, 1632–1704) developed many
of his theories on politics and human rights (1683-1688). He made the assumption that all people
are born free and equal and are not subject to any authority in his Two Treatises of Government
(1690). That is what civil society replaces. In this way, a social compact that commits individuals
to the will of the majority results in the creation of the state. The ruler has no divine authority in
that society, and everyone has unalienable rights to life, freedom, property, and health.

Thomas Paine (1737–1809), an immigrant to America in 1774, was born in England. There he
released Common Sense, a manifesto for American independence that in a year sold 100,000
copies. When he returned to England, he authored The Rights of Man after witnessing the French
Revolution and escaping the execution (1791). Its primary tenet is that everyone has the right to
freedom and equality at birth. Second, politics must not obstruct people's "natural" rights, such as
their freedom, property, security, and ability to oppose injustice. Third, the people are the source
of state authority.

What historical developments of human rights have been motivated by what processes? The quest
for freedom in the sense of emancipation for such groups as citizens, workers, women, and slaves
is one of the driving forces behind the creation of human rights. There is also the effort to legalize,
like in the case of international legislation prohibiting crimes like slavery, torture, and
incarceration. The importance of impartiality in the field of human rights calls for accurate and
truthful reporting.

According to American historian Samuel Moyn's 2010 book The Last Utopia: Human Rights in
History, it wasn't until roughly 1968 that the idea of human rights started to unite people in their
pursuit of justice. Within a few years, human rights became the focal point of social activism, the
vocabulary of international politics, and UN initiatives in Eastern and Western Europe, the United
States, and Latin America. That occurred in the void left by the fall of prior political utopias like
nationalism and communism. Moyn explains how Amnesty International, a group that was
established in 1961 and developed into a true international movement in the 1970s, is responsible

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for the current human rights ideology's ascent. That group established human rights as a widely
accepted, non-governmental ideal. Amnesty was given the Nobel Peace Prize in 1977. Carter
established human rights as the guiding principle of his foreign policy in the same year.

For their work, Amnesty and other organizations' human rights advocates often turn to historical
texts, particularly the Enlightenment. According to Moyn, this example is not accurate: "People
did not light candles to free prisoners during the Enlightenment." They would much prefer hang
the monarch by his neck. So, human rights have only existed for a short time? Yes, in the sense of
a universally understood concept. However, as this essay contends, what we currently refer to as
human rights was formed by beliefs and behaviors from a long time ago.

Traditional non-westernized States were clueless on the idea and concepts of human rights

Regardless of culture or tradition, everyone has inherent and unalienable rights under the Western
cultural construct of human rights. Human rights are subject to limitations in non-Western
societies, but only when those limitations violate their members' rights in a culturally and
traditionally acceptable manner. By offering different perspectives on the individual and their
place in the larger community, many cultural traditions such as Sharia law and female circumcision
challenge the cultural underpinnings of human rights. Therefore, it is incorrect to suggest that
human rights are an instance of cultural imperialism on the part of cultural relativists who defend
each culture's right to diversity despite flagrant violations of the rights of its citizens. International
human rights law is backed by practically all states because it gives all people the ability to exercise
unalienable rights regardless of differences or cultural customs. Asserts that cultural imperialism
is a type of human rights.

In non-individualistic, communal societies, where traditionalists contend that individual human

rights are "inappropriate and irrelevant" in a communal setting, the individualism of human rights
creates a variety of challenges (Howard 1995, 87). Indeed, according to Donnelly (1990), 43
human rights law only relates to individual rights; collective rights are not covered by it. As a
result, each individual is given the freedom to defy cultural and communal norms in order to live
the life they wish. Human rights thus defend the individual against society (Howard 1995, 8).
These rights are complicated because not all countries and states impose them, especially when it

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comes to the individual within the community, historical tradition, and subsequently enshrined
cultural values. Indeed, some states contend that because of the stark contrast between human
rights and non-Western cultures' indigenous, traditional values, human rights are inapplicable not
those societies.

It's significant that, despite assertions to the contrary, cultural rights are recognized as an essential
part of the larger human rights framework (Thamilmaran 2003, 146). Article 27 of the UDHR,
which reads, "Everyone has the right to freely participate in the cultural life of the community,"
serves as the foundation for these cultural rights (UN 1948). In addition, the UN ratified the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) twenty years after the UDHR (ICCPR). Despite
not being signed until 1976, both agreements strengthened the position of cultural rights within
the broader framework of human rights (Thamilmaran 2003, 146).

Conclusion

Western cultures have a concept of human rights. It can have substantial repercussions for non-
Western cultures. Despite the nearly universal ratification of international human rights law by
governments, the application of human rights is constrained by both non-Western and Western,
diverse cultural traditions. The cultural complexity surrounding human rights are illustrated by
Sharia law and the cultural ideas around the penalty of specific offences. The issues surrounding
female circumcision show the challenges of enforcing an individualistic rights system in societies
that value collective rights. Cultural relativism, the argument put out by many of these traditions,
is a sophisticated one with some merit. However, cultural practices like Sharia law that limit or
abuse individuals' rights frequently use the theory of cultural relativism as justification for human
rights abuses.

This is not enough. As seen by Sharia and female circumcision, societies that claim tradition while
violating the rights of their citizens are oppressive, patriarchal nations whose citizens require
human rights. Because of this, all people have inherent and inalienable rights, regardless of the
cultural tradition they were born into. Cultures that violate these rights under the guise of cultural
relativism deserve to have human rights imposed upon them. The rights granted to the person under

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modern human rights continue to be important, and no cultural difference may override their
significance. This is true even though applying human rights in a world with a variety of cultures
is complicated.

Question 5

a. You have been approached by Uraia Africa (‘UA’), a national NGO engaged in promoting
human rights for persons at risk of the statelessness on the continent. In particular they
would like you to give them a reasoned legal opinion on procedures that Kenya should take
to process claims for nationality by individuals such as Petrus. [10marks]

Chapter III of the Kenyan Constitution from 2010 and the Citizenship and Immigration Act from
2011 both govern nationality in Kenya. The Kenyan Constitution abolished gender discrimination
in citizenship laws and, for the first time, allowed adults to hold dual citizenship. The new
constitution also declares that every child has the right to citizenship from birth and establishes for
the first time the presumption of Kenyan citizenship for children whose parents are unknown.

The act clarifies the constitutional rules in more detail and offers temporary special procedures to
allow stateless people, people who have lived in Kenya since the country's independence in 1963,
and their descendants to apply for citizenship under certain conditions, within five years of the
act's adoption.

These temporary procedures are a reminder of the provisions of Kenya's independence

constitution, which adopted the common practices of the Commonwealth nations regarding
citizenship acquisition: those born before the constitution went into effect automatically acquired
Kenyan citizenship if one parent was also born there; and those born in Kenya or residing there
without a parent born there had a two-year window after independence to register as citizens. Those
born in Kenya after the country's independence were automatically citizens. However, the
constitution was altered in 1985 with a retroactive effect to independence to eliminate privileges
based on birth in Kenya.

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Petrus Citizenship,

He may rely on section 17 of the Kenya citizenship and immigration act no. 12 of 2011 as a
Descendant of stateless persons and migrants. The section further outlines the application
procedure for one to acquire citizenship.

b. The UA decided to share the findings in (a) with the office of the Refugee Affairs Secretariat
for consideration. As Legal Advisor to the Secretariat, draft your reaction to the proposals
made by the NGO. (10 marks)

On fulfilling or establishing the conditions set out in section 17 of the Kenya citizenship and
immigration act no. 12 of the 2011, the refugee affairs secretariat shall commence the process of
the application for registration of citizenship of individuals such as Petrus,

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