ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

MODULE LLB 341

HUMAN RIGHTS LAW

©2023 (ZAOU)
 ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

Author

Tracy Muleya Mbandama

LLB, (ZAOU), LLM (UNILUS), Dip-Joun (UNZA), Dip-TM, (CHAU), PHD Candidate

First Edition 2023

ISBN

Publisher: Zambian Open University

Copyright: © 2023 Zambian Open University

All rights reserved

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any
form or by any means, electronic, mechanical, photocopying or recording or otherwise without
prior written permission of the copy writer owner, Zambia Open University.

i
Rationale

Human rights law is a course tailored to create in students an understanding about human rights
concepts and principles, including human rights history, documents, and implementation
mechanisms. It also enables students to understand the provisions of the international bill of
human rights and how these international standards affect governments and individuals. Students
will have an understanding of basic theoretical elements and practical knowledge in human
rights in order to have skills for advocacy and action, and development of responsibilities linked
to human rights such as responsibility to observe human rights principles in one‘s life, to defend,
promote and respect the rights of others.

Aim

The purpose of this course is to introduce university students to some key concepts in human
rights with an ultimate goal of helping them to recognize the inherent dignity and the equal and
inalienable rights of all members of the human family as a foundation of freedom, justice,
dignity and peace for all.

Course Objectives

By the end of the course, you are expected to:

 Analyze the origin, and development of the idea of human rights and natural rights.
 Explain the characteristics and classifications of human rights.
 Explore the fundamental rights in the Zambian Constitution.
 Discuss sources of human rights law.
 Examine the International Bill of Human Rights.
 Explore the regional human rights systems
 Explore other key international and regional human rights documents.
 Establish State obligations towards human rights.
 Discuss the topical human rights issues

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Learning Outcomes

At the end of the course, students should be able to:-

 Have theoretical and practical knowledge of human rights as a discipline.

 Foster attitudes of tolerance, respect, solidarity, and responsibility.
 Develop awareness of how human rights can be translated into social, cultural,
economic and political reality.
 Develop skills and ability for protecting and analyzing human rights situations.
 Understand the importance of respect for all human rights without discrimination.
 Demonstrate knowledge about key procedures in promoting and protecting the
fundamental rights of common people internationally, regionally and locally.

ASSESSMENT

The continuous assessment will comprise the following:

1. CONTINOUS ASSESSMENT
a. First assignment- 25%
b. Second assignment- 25%
c. Final Examination- 50%

TOTAL- 100%

Recommended Reading

Munyonzwe Hamalengwa (2023). Commentaries on the Laws of Zambia: Lusaka

Understanding Human Rights (2012). Manual on Human Rights Education 3rd edition:
(Published by European Training and Research Centre for Human Rights and Democracy, Graz.
Prescribed reading

Alfred W Chanda; Annie Chewe-Chanda (2011) Human rights law in Zambia: cases and
materials. University of Zambia Press: Lusaka, Zambia.

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International Legislation

African Charter on Human and Peoples‘ Rights, 1981

African Charter on the Rights and Welfare of the Child, 1990

American Convention on Human Rights, 1969

European Convention on Human Rights, 1950

Convention on the Elimination of all Forms of Racial Discrimination (ICERD) 1965

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) 1984
Convention on the Rights of the Child (CRC) 1989

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families (CMW)

International Convention for the Protection of All Persons from Enforced Disappearance
(ICPPED) 2006
Protocol to the African Charter on the Rights of Women in Africa, 2003

United Nations Charter, 1945

United Nations Convention on the Rights of Persons with Disabilities, 2006

Vienna Convention on the Law of Treaties (VCLT) of 1969

Domestic Legislation

Constitution of Zambia Cap 1 of the Laws of Zambia

Human Rights Commission Act No. 39 of 1996

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Mental Health Act No. 6 of 2019

Police Public Complaints Commission Act No. 18 of 2016

Persons with Disabilities Act No. 6 of 2012

Public Protector Act No. 15 of 2016

Termination of Pregnancy Act, 1973

Case Law

Airey v Ireland ECHR (ser. A) 1979.

Bwanausi v The People (1976) Z.R. 103

Christine Mulundika and 7 others v the People [1996] 2 LRC 175

Chipenzi and Others v The People (2014) HPR/03.

Chapter One Foundation v Zambia Information Telecommunication Technology Authority, HC,

2022

Doe v Bolton 410 US 179 (1973)

George Peter Mwanza and Melvin Beene v Attorney General Appeal No. 153/2016 SC Selected
Judgment No. 33 of 2019

Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC).

Feliya Kachasu v Attorney General (1972) ZR

Fred Mmembe, Bright Mwape v The People and Fred Mmembe Masautso Phiri Goliath
Mungonge v The People SCZ Judgment No. 4 of 1996

Mwaba v Attorney-General (1974) Z.R. 177 (H.C.)

Makwanyane and Mcbunu v The State (CC/ 1995)

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Roe v Wade 410 US 113 (1973)
Sarah Longwe v Attorney General, HC 1984

Velasquez Rodriguez v Honduras International Legal Materials (1989) 294

Declarations

United Nations Universal Declaration of Human Rights, 1948

VIENNA DECLARATION AND PROGRAMME OF ACTION, 1993

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 TABLE OF CONTENTS

Content Page

UNIT ONE: INTRODUCTION TO HUMAN RIGHTS LAW…………………………………1

UNIT TWO: THE HISTORICAL DEVELOPMENT AND EVOLUTION OF HUMAN

RIGHTS………………………………………………………………………………………….12

UNIT THREE: THE UNITED NATIONS……………………………………………………...19

UNIT FOUR: INTERNATIONAL BILL OF RIGHTS……………………………………..…..29

UNIT FIVE: REGIONAL HUMAN RIGHTS SYSTEMS………………………………...……41

UNIT SIX: FUNDAMENTAL RIGHTS IN THE ZAMBIAN CONSTITUTION……………...63

UNIT SEVEN: JUSTICIABILITY OF ECONOMIC, SOCIAL, AND CULTURAL

RIGHTS……………………………………………………………………………………….…72

UNIT EIGHT: OTHER CORE INTERNATIONAL HUMAN RIGHTS

INSTRUMENTS………………………………………………………………………………78

UNIT NINE: STATE OBLIGATIONS TOWARDS HUMAN RIGHTS..………………….…..93

UNIT TEN: CONTEMPORARY ISSUES IN HUMAN RIGHTS- ZAMBIA AND

AFRIC..……………………..…………………………………………………………………...98

MODULE CONCLUSION……………………………………………………………………..118

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 UNIT ONE

INTRODUCTION TO HUMAN RIGHTS LAW

1.1. LEARNING OUTCOMES

As you learn and go through this unit, you are expected to:

 Know the nature and meaning of human rights

 Have an understanding of the sources of Human Rights
 Be aware of the characteristics of Human Rights
 Have an appreciation of the categories/classifications of human rights
 Apply theory to practice

1.2.Introduction

Human rights law can be understood as customs, rules or practices that address the fundamental
rights and freedoms of individuals. Human rights law can take many different forms, including
international law, regional law, statutes of individual countries, and case decisions by the courts.
In this unit, a brief introduction of the genesis of human rights will be taken into consideration.
The definition of human rights and the characteristics and nature of human rights will be dealt
with. Further the classification of human rights will be examined so as to have an understanding
on how human rights are categorized and the rationale behind it.

1.3. Meaning of Human Rights

Human beings are born equal in dignity and rights as such; human rights are moral claims which
are inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of
caste, colour, creed, and place of birth, sex, cultural difference or any other consideration. These
claims are articulated and formulated in what is today known as human rights. Human rights are
sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth
rights. Human rights when they are guaranteed by a written constitution are known as
―Fundamental Rights‖ because a written constitution is the fundamental law of the state.

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Jack Donnelly defines Human rights as those minimal rights, which every individual must have
against the State, or other public authority, by virtue of his being a ‗member of human family‘
irrespective of any consideration1. Jack Donnelly‘s definition brings out the essence of human
rights as claims that exist without the need for the law to recognize such claims. Simply put,
human rights exist regardless of the position or provisions of the law. On the other hand, Thomas
Pogge defines Human rights as rights that every human being has by virtue of his or her human
dignity which exists independent of any law2.

Various international instruments have defined human rights and one of such instrument is the
Universal Declaration of Human Rights (UDHR), 1948, which defines human rights as rights
derived from the inherent dignity of the human person.

From the definitions above, it is clear that human rights are basic rights and freedoms whose
emphasis is on the dignity of a person. Therefore, human rights dignify the existence of the
human family. To treat another individual with dignity irrespective of the fact that the person is a
male or female, rich or poor etc. is concerned with human dignity. Those who believe in the
universality of human rights believe that these rights belong to every person in the world, and
that we are all equally entitled to these rights, regardless of where we are born.

Indeed, human rights are essential and necessary because in the absence of human rights, the
moral, physical, social and spiritual welfare of an individual is impossible. Human rights are also
essential as they provide suitable conditions for material and moral upliftment of the people. The
focus of human rights is on the life and dignity of human beings. A person‘s dignity is violated
when they are subjected to torture, forced to live in slavery or poverty, i.e., without a minimum
of food, clothing and housing.

1.4. Characteristics and Nature of Human Rights

The following are the characteristics of human rights:

1
Jack Donnelly (2009). ―Human Dignity and Human Rights‘. USA: WWW.UDHR60.CH.
2
Thomas Pogge (2000). The International Significance of Human Rights: The Journal of Ethics 4. Kluwer
Academic Publishers: Netherlands, p 46.

2
  Human Rights are Inalienable
Human rights are conferred on an individual due to the very nature of his existence. Human
rights are „inalienable‟ in so far as no person can be divested of his or her human rights, save
under clearly defined legal circumstances. For instance, a person‘s right to liberty may be
restricted if he or she is found guilty of a crime by a court of law. It is also said that nobody can
renounce these rights by him/her-self. People still have rights even when the laws of their
countries do not recognise them, or when they violate them. For instance, when slavery is
practised, slaves still have rights as human beings. A slave does not cease to be human by the
fact of enslavement. Even though slave owners treat slaves like pieces of property, in truth they
are not property but full human beings. They are people who are held against their will by
people intent on exploiting their labour.

 Human rights are inherent

Human rights and fundamental freedoms are regarded as „inherent‟ because they are the
birthright of all human beings3. We are born with them. Human rights flow from human nature.
Therefore, if human rights are the birthright of all human beings then it is correct to say that
human rights exist even independently of the law. They are inherent in all individuals
irrespective of their caste, creed, religion, sex and nationality.

Human rights are conferred to an individual even after his death. The different rituals in different
religions bear testimony to this fact. The law does not create the rights and freedoms that we
have as human beings. Instead, the law recognises the existence of human rights and facilitates
their enforcement through the creation of procedures and institutions. Human rights are not
given, bought, earned or inherited. They belong to people simply because they are human. It
means that a person does not have to do anything to prove that he or she is entitled to human
rights. The only qualification needed is to be a human being. Because human rights are inherent,
it is also correct to say they are irrevocable. They cannot be taken away by any power or
authority because these rights originate with the social nature of man in the society of human
beings and they belong to a person simply because he is a human being. As such human rights
have similarities to moral rights.

3
UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948).

3
  Human rights are universal
At the heart of the protection of human rights is the notion that all human beings have a right to a
dignified existence wherever they may be. The right to a dignified existence is the basis of the
universality of human rights (see Art. 1 of the Universal Declaration of Human Rights). Human
rights are universal because they are based on every human being‘s dignity, irrespective of race,
sex, religion, ethnicity, political or other opinion, national or social origin. Human beings
everywhere are the same because human nature is the same everywhere.

 Human rights are indivisible, interdependent and interrelated

In addition to being universal, human rights are indivisible, interdependent and interrelated. This
means that the protection of each human right and fundamental freedom depends on the effective
promotion and protection of other rights and freedoms4. For instance, the right to life depends on
an individual‘s effective enjoyment of, among others, the right to food, right to health and right
to a clean and healthy environment.

 Human Rights are never absolute

Man is a social animal and he lives in a civic society, which always put certain restrictions on the
enjoyment of his rights and freedoms. Human rights as such are those limited powers or claims,
which are contributory to the common good and which are recognized and guaranteed by the
State, through its laws to the individuals. As such each right has certain limitations. For example,
in the Zambian Constitution, Part III provides for basic rights but these rights come with
restrictions and to illustrate; right to freedom of movement in Zambia has a limitation in that a
prisoner cannot claim this right or anyone detained or confined under the order of the court.

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VIENNA DECLARATION AND PROGRAMME OF ACTION (1993) Section I Paragraph 5 states: ―All human
rights are universal, indivisible and interrelated. The international community must treat human rights globally in a
fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and
regional particularities and various historical, 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 all human rights
and fundamental freedoms‖.

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  Human Rights are Dynamic

Human rights are not static, they are dynamic. Human rights go on expanding with socio-eco-
cultural and political developments within the State. Judges have to interpret laws in such ways
as are in tune with the changed social values. For example, in the past, sexual orientation,
disability, welfare of women, climate change etc were not widely recognized as human rights
issues but today because the world is changing human rights have to adapt too to the changes.

1.5. Classification of Human Rights

Human rights are traditionally classified in different ways but a classification that is more
generally accepted, according to John C Mubangizi, however, is that they fall into three
categories, namely; first, second, and third generation rights5.

The first generation rights consist of civil and political rights which are aimed at protecting the
citizen against arbitrary action of the state.

The second generation rights consists of economic, social and cultural rights and contains rights
founded on the status of an individual as a member of society which require more positive action
on part of the state to create conditions for access to these rights6.

The third generation of rights which is also termed solidarity rights is quite new in origin and
consists of collective rights which depend upon international co-operation, government and the
people for their achievement7.

The generations of these rights will be examines one by one below;

 Civil and Political Rights (First Generation Rights)

Civil and political rights emphasize the freedom of the individual and normally require the State
to abstain from interfering in their enjoyment (duty of abstention). In that sense, civil and

5
John C Mubangizi (2004). Towards a new approach to the classification of human rights with specific reference to
the African context: African Human Rights Law Journal Vol. 4 No. 1, P 95.
6
Ibid, pp 95-96.
7
Jason Morgan Foster (2005): Third Generation Rights: What Islamic Law Can Teach the International Human
Rights Movement: Yale Human Rights & Development L.J. Vol. 8, P 85.

5
political rights impose what is termed a ―negative obligation‖ on the State. Examples include the
rights to life; liberty and security of person; freedom from torture and slavery; political
participation; freedom of opinion, expression, thought, conscience and religion; freedom of
association and assembly. The government has a duty of abstention concerning the first
generation rights in that the State has to take active steps to ensure that the obligations which are
created are complied with by all authorities. This includes also the duty of investigation if a
fundamental human right has been violated.

 Economic and Social Rights (Second Generation Rights)

The second generation category consists of rights that are termed economic, social and cultural
rights. Their realization should bring about social justice and equity. They are said to mainly
require ―positive action‖ on the part of the State, meaning that the State should take deliberate or
active steps to bring about conditions in which every person enjoys adequately his or her
economic, social and cultural rights (duty of performance). This category includes the right to
education, work and work related rights, adequate standard of living, food, health care, decent
housing and shelter etc.

 Collective or Group Rights (Third Generation Rights)

Collective or group rights are by their nature asserted not by individuals as such, but by people as
a group. These are of a very recent origin in the late twentieth century. These rights enable an
individual to participate in the process of all round development and include right to peace, right
to self-determination, right to development and environmental rights that enable an individual to
enjoy the absolutely free gifts of nature, namely, air, water, food and natural resources, free from
pollution and contamination. They are also called as Solidarity or collective Rights, because their
implementation depends upon international cooperation.

Solidarity rights are of special importance to developing countries, because these countries want
the creation of an international order that will guarantee to them the right to development, the
right to disaster relief assistance, the right to peace and the right to good government. Human
rights have been classified in different bases. Each right signifies the awareness and
emancipation of a particular century. For example, the development oriented rights/third
generation rights belong to the twentieth century which is essential to maintain world peace as

6
well as right to clean and wholesome environment along with environment protection and
improvement.

1.6. Sources of Human Rights Law

Sources of law are the origins of laws, the binding rules that enable any state to govern its
territory. The term "source of law" may sometimes refer to the sovereign or to the seat of power
from which the law derives its validity.

Sources of human rights law are drawn from a variety of sources. The following are sources of
human rights law:

 Constitutions
 Legislation
 Common Law
 Judicial precedent
 Writings of eminent authors

 National Constitutions
National constitutions provide a rich source of human rights law. For example, in Zambia Part III
of the Bill of Rights enumerates the rights of people in the nation. Equally, various constitutions
of the respective countries guarantee human rights. The Constitution of India for instance, makes
provisions for basic rights also known as Fundamental Rights for its citizens as well as for aliens.
Part III, of the Indian Constitution exhaustively enumerates the fundamental rights of people.

 Legislation
Legislation is contained in statute books that are available in most libraries. Constitutionally,
legislation refers to laws that have been passed by parliament and assented to by the President.
Subsidiary legislation refers to laws passed by other bodies to which parliament have validly
delegated such legislative powers. These include government gazettes and municipal bye-
laws, inter alia. Various pieces of legislation may contain human rights of citizens. For example,

7
in Zambia, the Mental Health Act, 2019 provides and protects rights of people with mental
disabilities.

 Judicial Precedent

Precedent forms part of the law in common law countries such as Zambia, Zimbabwe, Malawi,
South Africa etc. Judicial precedent (aka: case law, or judge-made law) is based on the doctrine
of stare decisive, and mostly associated with jurisdictions based on the English common law, but
the concept has been adopted in part by Civil Law systems.

Precedent is the accumulated principles of law derived from centuries of decisions. Judgments
passed by judges in important cases are recorded and become significant source of law. When
there is no legislature on a particular point which arises in changing conditions, the judges
depend on their own sense of right and wrong and decide the disputes from first principles.
Authoritative precedent decisions become a guide in subsequent cases of a similar nature.

The dictionary of English law defines a judicial precedent as a judgment or decision of a court of
law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy8. Another definition declares precedent to be," a decision in a court of
justice cited in support of a proposition for which it is desired to contend"9. Compared to other
sources of law, precedent has the advantage of flexibility and adaptability, and may enable a
judge to apply "justice" rather than "the law".

Decisions of superior courts of record are therefore binding to lower courts. Precedent assists in
consistency in legal interpretation and application of human rights law. It has also been justified
for bringing certainty and uniformity to the law. Various courts are bound to stick to the
decisions they made earlier in human rights cases at present with similar facts of course. Judicial
decisions of international courts such as the ICC and the ICJ are also sources of law.

 Writings of eminent writers

Written works of eminent authors have persuasive value in the courts of many nations including
Zambia. These include writings of the old authorities as well as contemporary writers from

8
Mozley & Whiteley's Law Dictionary - E.R. Hardy Ivamy.
9
Ibid.

8
similar jurisdictions10. Various writers on natural law theories such as John Locke for example,
have made contributions to human rights and consequently form sources of human rights law.

 International Law
International law consists of treaties or international and regional agreements that nations sign or
ratify. Treaties or conventions are agreements between States which create legally-binding rules
for the parties with reference to a particular subject-matter. In the case of human rights, treaties
are those binding instruments adopted by States which enshrine the fundamental rights and
freedoms to which the State ascribes, and to which its nationals are entitled.

The Vienna Convention on the Law of Treaties (VCLT) of 1969 is a key international agreement
which governs the creation, operation and legal effect of most treaties. It includes the major
rules and regulations concerning treaties and defines as a …an international agreement
concluded between States in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments11.

The primary sources of Human rights law at international level are obviously the United Nations
Universal Declaration of Human Rights, International Covenants on Civil, Political, Social,
Cultural and Economic Rights and the various human rights documents and treaties that followed
such as those by, the Council of Europe, the Organization of American States, the African
Charter on Human and Peoples‘ Rights, and various human rights conventions or agreements.

Zambia is signatory to many international instruments. For example, Zambia has ratified the
International Convention on the Rights of Persons with Disabilities, and consequently, this
Convention forms part of human rights law concerning disability rights in Zambia and in other
countries where it is ratified.

 Customary law

Customary law includes customs, beliefs and traditions of people that have been practice over a
period of time and are widely accepted. A ‗General Custom‖ as a source of law is not normally

10
For example, Edward Coke's Institutes of the Lawes of England, William Blackstone's Commentaries on the
Laws of England, and similar texts are commonly cited and as such become source of law.
11
Article 2(1) (a) of the VCLT.

9
written, but if a practice can be shown to have existed for a very long time, such as ‗since' (1189
AD), it becomes a source of law. A "Particular Custom" (or "private custom") may arise and
become a right with the force of law when a person or a group of persons has from long usage
obtained a recognized usage, such as an easement.

Customary law can form a basis of human rights law in areas such as customary marriages in
order to ascertain the rights of parties, property etc that flow from such engagements. Customary
law in the case of Zambia is only a source of human rights law to the extent that it doesn‘t
infringe on the supreme law of the land- the constitution.

 General principles of law accepted by civilized nations

As a source, these are the principles/rules accepted in the domestic law of all civilized States.
The general principles of law seek to cover any gaps that may exist in international law that are
not, for instance, properly covered by international custom.

Suffice to state here, however, that debate still rages as to what exactly these principles are.
Some regard general principles of law to be natural law concepts which are deemed to underlie
the system of international law and constitute the method of testing the validity of ―man-made‖
rules.

An example of general principle of law accepted by nations is the absolute prohibition against
any form of torture, humiliating and degrading treatment. This principle is intended to protect
people from being subject to any form of torture.

1.7. Unit summary

Human rights are conferred on an individual due to the very nature of his existence. They are
inherent in all individuals irrespective of their caste, creed, religion, sex and nationality. Human
rights are conferred to an individual even after his death. At the heart of the protection of human
rights is the notion that all human beings have a right to a dignified existence wherever they may
be. The right to a dignified existence is the basis of the universality of human rights. Human
rights generally fall into three categories, namely; first, second, and third generation rights. The

10
first generation rights consist of civil and political rights. The second generation rights consists
of economic, social and cultural rights and the third generation of rights which are also termed
solidarity rights are quite new in origin and consists of collective rights which depend upon
international co-operation, government and the people for their achievement. Human rights are
sometimes referred to as fundamental rights, basic rights, inherent rights, natural rights and birth
rights. They are essential for all individuals to protect themselves against the State or public
authority or against members of its own class. Human rights are universal, inalienable,
interdependent, dynamic and inherent.

1.8.End of unit One revision exercise

1. How do human rights limit the state powers? Explain.
2. Discuss the concept of human dignity as a basis for human rights
3. Do you think the categorization of human rights is really necessary?
4. List all the sources of human rights law
5. One of the characteristics of human rights is that they are universal. Do you believe that
human rights can be universal? Explain.

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 UNIT TWO

THE HISTORICAL DEVELOPMENT AND EVOLUTION OF HUMAN RIGHTS

2.1. Objectives

The aim of this unit is to

 Introduce a student to the early development of the idea of human rights concept
 Examine early writers and events that led to the idea of human rights to survive down
to this day
 Explain historical landmarks in the development of human rights
 Discuss how historical progress of human rights have affected and shaped modern
human rights law and its dispensation
 Apply theory to practice

2.2. Introduction

The evolutions of human rights have taken place over centuries. Man had to struggle hard in
order to achieve the ultimate goal – living with dignity – which still has to be realized in various
societies. Zambia itself is an example where women, children, people with disabilities, etc, are
trying hard to be a part of mainstream. Early writers and philosophers of olden days had a great
impact in the development of human rights. The origin of human rights may be traced to the
theory of Natural Rights derived from the concept of Natural Law, as propounded by ancient
Greek Stoic Philosophers and further developed by Thomas Hobbes and John Locke. The
American and French Revolution gave further impetus to the struggle of human rights. The
evolution and development of human rights in the international context can be traced to the
Magna Carta and the English Bill of Rights followed by the French Declaration and the
American Bill of Rights.

These early writers and landmark events in England, America and France shaped the modern
development of human rights when the world recognized the U.N. Charter of 1945 which
endorsed the notion that human rights are inalienable aspect of mankind through the Universal
Declaration of Human Rights in 1948. The twentieth century witnessed the crystallization of the
12
philosophy of Human Rights when the United Nations adopted the UN Charter, 1945, The
Universal Declaration of Human Rights, 1948 and the International Covenants on Human Rights
with further emphasis to protection of rights of Women, Abolition of Slavery, Racial
Discrimination, Civil and Political Rights, Economic, Social and Cultural Rights and most
importantly the Rights of children.

In Zambia the drafters of republican Constitution took care to incorporate Human Rights for
its own citizens as well as for the aliens in the Bill of Rights as provided for in Part III12.

2.3. The Natural Rights Theory

Though the expression ‗human rights‘ had its origin in international law, which is not older than
the World War II, the concept of an individual having certain basic, inalienable rights as against
a sovereign State had its origin in the doctrines of natural law and natural rights.

 What is natural law? Natural law is a theory in ethics and philosophy that says that
human beings possess natural values that govern their reasoning and behavior. Natural
law theory maintains that these rules of right and wrong are inherent in people and are not
created by society or court judges. Natural law theory is based on the idea that natural
laws are universal concepts and are not based on any culture or customs. In summary, the
paradigmatic natural law view holds that;
o The natural law is given by God, indicating the existence of a superior being who
enacted these laws;
o It is naturally superior and authoritative over all human beings; and
o It is naturally knowable by all human beings.

It is true that humans have inherent values such as moral standards, rationality, and conscience
which allow them to make rational decisions. It also develops the sense of right-wrong and good-
evil based on individual choices and behavior. Can natural law be changed? No change takes
place in the natural law when a positive law is enacted. Natural law itself is not changed because
it is like something written in the hearts of people and no sort of wickedness can erase natural
law. Therefore, natural law maintains two principles; first; good is to be pursued, and second,

12
Constitution of Zambia Amendment Act No. 6 of 1996.

13
what is contrary to it must be avoided. This tells us that it is reasonable to pursue good and to
avoid what is contrary to it.

The three main thinkers who developed the Natural Rights theory are;

 Thomas Hobbes (1588 – 1679)

 John Locke (1632 – 1704) and
 Jean-Jacques Rousseau (1712 – 1778).

Thomas Hobbes was the first champion of the theory of ‗natural rights‘. In his celebrated book,
‗Leviathan‘, he advocated that no individual could ever be deprived of the right to life, which he
enjoyed in the state of nature. He asserted that all human beings are equal, without any
consideration.

John Locke developed the idea further in his book, ‗Two Treatises of Government.‘ He argued
that every human being has a natural right to life, personal liberty, and property, and that no
governmental authority has power to deprive individuals of these rights because they had
enjoyed them even before the creation of the civil or political society. Locke emphasizes that;

the power of governmental authority is limited to that which is necessary to guarantee the
equal fundamental rights of all, and revolt against it is justified if it fails in that basic
purpose.

Locke‘s political philosophy directly influenced the American Declaration of Independence in

1776. The Americana revolted against the British Monarch due to failure by the King to respect
their rights on an equal basis.

For Jean Rousseau the state of nature is relatively peaceful, but a social contract
becomes necessary to overcome conflicts that inevitably arise as society grows and individuals
become dependent on others to meet their needs. Rousseau is regarded as the greatest master of
natural law school. In his celebrated book, ‗The Social Contract‘, Rousseau states that ―All men
are born free but everywhere they are in chains.‖ Rousseau proclaimed that men are bestowed
with inalienable rights of liberty, equality and fraternity. Rousseau‘s contract theory argued
against the idea that monarchs were divinely empowered to legislate.

14
 Social contract theory holds the view that person‘s moral and political obligations are
dependent upon a contact or agreement among them to form the society in which they live.
Rousseau asserts that only the people who are sovereign have that all-powerful right.

These natural law concepts discussed above inspired political reforms or revolutions in Europe
especially in France and became the basis for the French Declaration of the Rights of Man and of
the Citizen.

2.4. Landmark Events in the Development of Human Rights

Human rights concept has evolved for centuries of years. The British and French legal systems
have contributed greatly to the crusade of human rights as shall be seen. This part introduces you
to how human rights have developed for centuries. Studying and learning about this will help
you understand that human rights did not come on a silver platter but through activism and
resistance to inhuman practices.

The important landmarks in the progress of human rights are as follows:

 The Magna Carta, 1215

The Magna Carta, also known as the Great Charter of 1215 is the most significant constitutional
document of all human history. The main theme of it was protection against the arbitrary acts by
the king. The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons from unjust taxes. The English Church too gained freedom from royal
interferences. King John of England granted the Magna Carta to the English barons on 15th June
1215. The king was compelled to grant the Charter, because the barons refused to pay heavy
taxes unless the king signed the Charter.

 The English Bill of Rights, 1689

The next source and avenue of the development of the philosophy of human rights is the English
Bill of Rights, enacted on December 16, 1689, by the British Parliament. The British Parliament
declared its supremacy over the Crown in clear terms. The English Bill of Rights declared that
the king has no overriding authority. The Bill of Rights codified the customary laws, and

15
clarified the rights and liberties of the citizens. It lays down the twin foundations, viz., the
supremacy of the law, and the sovereignty of the nation, upon which, the English constitution
rests.

 American Declaration of Independence, 1776

The first colonies to revolt against England were the thirteen States of America. These states
declared their independence from their mother country on 4th July 1776. The declaration charges
the king with tyranny and affirms the independence of the American colonies. The declaration of
independence has great significance in the history of mankind as it justified the right to revolt
against a government that no longer guaranteed the man‘s natural and inalienable rights.

 The U.S. Bill of Rights, 1791

The U.S. Constitution was enacted on 17th September 1787. The most obvious defect of the
original constitution was the omission of a Bill of Rights concerning private rights and personal
liberties. Therefore twelve amendments in the form of Bill of Rights were proposed. Ten of these
were ratified by the State legislatures. These ten constitutional amendments came to be known as
the Bill of Rights. The overall theme of the Bill of Rights is that the citizen be protected against
the abuse of power by the officials of the States.

 The French Declaration of the Rights of Man and of the Citizen, 1789

The fall of Bastille and the abolition of feudalism, serfdom and class privileges by the National
Assembly ushered France into a new era. On 4th August 1789, the National Assembly
proclaimed the Rights of Man and of the Citizens. The Rights were formulated in 17 Articles.
The Declaration of the Rights of Man and of the Citizen has far reaching importance not only in
the history of France but also in the history of Europe and mankind.

The declaration served as the death warrant for the old regime and introduced a new social and
political order, founded on the noble and glittering principles. Further the declaration served as
the basis for many Constitutions, framed in different countries, where the framers gave top
priority to human rights.

16
  Declaration of International Rights of Man, 1929

After World War I, questions about human rights and fundamental freedoms began to be raised.
In 1929, the Institute of International Law adopted the Declaration of International rights of Man.
The Declaration declared that fundamental rights of citizen, recognized and guaranteed by
several domestic constitutions, especially those of the French and the U.S.A constitutions, were
in reality meant not only for citizens of the states but for all men all over the world, without any
consideration.

 The UN Charter, 1945

The United Nations Charter was drafted, approved and unanimously adopted by all the delegates
of the 51 states, who attended the United Nations Conference at San Francisco. The UN Charter
contains provisions for the promotion and protection of 8 human rights. The importance of the
Charter lies in the fact that it is the first official document in which the use of ‗human rights‘ is,
for the first time traceable and which also recognized the respect for fundamental freedom.

 The Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights was adopted by the General Assembly of the
United Nations on 10th December, 1948. The Declaration consists of thirty Articles and covers
civil, political, economic, social and cultural rights for all men, women and children. The
declaration however is not a legally binding document. It is an ideal for all mankind.

 International Covenants on Human Rights

The Universal Declaration of Human Rights, 1948 was not a legally binding document. It lacked
enforcements. This deficiency was sought to be removed by the U.N. General Assembly by
adopting in December, 1966, the two Covenants, namely;

 International Covenant on Civil and Political Rights and

 International Covenant on Economic, Social and Cultural Rights.

The two International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights. The International Bill of Human

17
Rights represents a milestone in the history of human rights. It is a modern Magna Carta of
human rights.

2.5. Unit summary

The origin of human rights may be traced to the theory of Natural Rights derived from the
concept of Natural Law, as propounded by ancient Greek Stoic Philosophers and further
developed by Thomas Hobbes and John Locke. Human rights concept has evolved for centuries
of years. The British and French legal systems have contributed greatly to the crusade of human
rights. The French revolution, the US Bill of Rights, the Magna Carter, the Universal Declaration
of Human Rights and the UN Charter have all contributed to this cause to say the least. The
adoption of the international bill of human rights is a major catalyst in the development of human
rights in modern days. The American and French Revolution gave further impetus to the struggle
of human rights. The evolution and development of human rights in the international context can
be traced to the Magna Carta and the English Bill of Rights followed by the French Declaration
and the American Bill of Rights. The twentieth century witnessed the crystallization of the
philosophy of Human Rights when the United Nations adopted the UN Charter, 1945, and The
Universal Declaration of Human Rights, 1948 was adopted.

2.6. End of unit Two revision exercise

 State the ultimate goal of human beings.

 Discuss how the social contract theory developed by French philosopher Jean-Jacques
Rousseau is applicable in the Zambian context.
 Discuss how Thomas Hobbes, John Locke and Jean-Jacques Rousseau have contributed
to the modern day human rights discourse.
 How is the American Declaration of Independence, 1776 justified?
 State the difference between the UDHR and the two covenants adopted by the U.N.
General Assembly (ICCPR and ICESCR)

18
 UNIT THREE
THE UNITED NATIONS

3.1. Objectives

At the end of this unit, students should be able to;

- Have insight on the importance of the UN Charter in the international human rights
discourse
- Understand what the Human Rights Council is and its role within the UN
- understand the specific mechanisms used by the UN to promote and protect human rights
- Apply theory to practice

3.2. Introduction

The origin of international human rights protection is international law, a body of law mainly
made up of treaties. After World War II, world leaders convened in order to come up with ways
that would see to it that never again should the world experience the atrocities that ravaged the
world in the two global wars. This culminated into the UN Charter in 1945 and since then, the
UN through adoption of various human rights documents and treaties have ensured minimum
maintenance of international peace and security as well as promotion of human rights at a global
stage. This unit will examine the role of the UN in the promotion and protection of human rights
as well as the international bill of human rights.

3.3. The Dawn of the United Nations

Brunno Simma, indicates that following the establishment of the United Nations (UN) on the
24th of October 1945, the practice of human rights protection and promotion has become a norm.
The UN was founded with the aim of never again letting crimes against humanity such as
genocide, war crimes and other serious violations of human rights happen13. Since then the UN

13
Bruno Simma, ed. (2012). The Charter of the United Nations: A Commentary, 3d ed. A guide to the legislative
history and meaning of the Charter. Cambridge University Press.

19
has had the goal to protect human rights and to maintain peace and security14 especially after the
Universal Declaration of Human Rights (UDHR) was proclaimed in 1948 to be a common
standard for all nations of what rights and freedoms humans have. For the first time there was a
universal aim to protect human rights and the first time they were deemed fundamental. The
UDHR aims to be recognized by both the people of member states as well as non-member states
and is argued to be the building stone of international human rights law15.

Article 1(3) of the UN Charter makes reference to human rights as being one of the purposes of
the UN just like the Charter‘s Preamble affirms that, the peoples of the United Nations are
determined to save succeeding generations from the scourge of war, which had brought untold
sorrow to humankind and, thus, reaffirmed faith in fundamental rights, dignity and worth of the
human person16. As such, in order for the UN to live up by its mission, all members of the UN
have pledged themselves to take joint and separate action in co-operation with the UN for the
achievement of the purposes aforementioned17. Therefore, the UN commits to respect human
rights and freedoms of all and create an environment where both men and women attain their
fullest potential without fear or prejudice.

3.4. UN Human Rights Council

The UN uses the Human Rights Council as a mechanism of protecting and promoting human
rights at a global stage. The UN Human Rights Council (UNHRC) replaced the UN Commission
on Human Rights (UNCHR) in 2006. Since its creation in 1946, the United Nations Commission
on Human Rights (UNCHR) served as a functional commission mandated under the Economic
and Social Council (ECOSOC) to act as the UN‘s principle mechanism and international forum
concerned with the promotion and protection of human rights around the world. Instead, this
body was often criticized for its excessive politicization, selectivity, and double standards.
Therefore, in 2006, the UN Human Rights Council (UNHRC) was established to replace the
Commission. The UN Human Rights Council is one of the independent organs within the UN
system made up of 47 States and it is the main body responsible for strengthening the protection

14
Charter of the United Nations, San Francisco, 24 October 1945, United Nations Treaty Series XVI, (available at:
https://www.un.org/en/charter-united-nations/).
15
Ibid.
16
Preamble to the UN Charter.
17
Article 56, UN Charter.

20
and promotion of human rights globally. The UNHRC differs from other parts of the UN as it
does not focus on the peacekeeping parts of protection of human rights but rather advise states on
human rights based on country specific or thematic perspectives. The main purpose of the
Council is to address situations of human rights violations and make recommendations on
them18. Of much interest to this study unit is that the United Nations Human Rights Council
outlines the mechanisms the Council employs to bring about accountability in the international
promotion and protection of human rights around the globe19.

3.5. Broad Responsibilities of the Council

Generally, the responsibilities of the Council as set out in the General Assembly Resolution are
to undertake a Universal Periodical Review (UPR), based on objective and reliable information
of the fulfillment of each State to its human rights obligations and commitments. The Council is
also mandated to redress situations of violations of human rights, including gross and systematic
violations and make recommendations to the General Assembly. In addition, the Council is given
a weighty responsibility of ensuring full implementation of human rights obligations undertaken
by States and follow-up to the goals and commitments related to the promotion and protection of
human rights emanating from United Nations. As such, the Council serves as a forum for
dialogue on thematic issues and fosters dialogue, human rights education, technical assistance
and capacity building to States with consent of States concerned20.

As part of the UN body, the Council has the ability to discuss all thematic human rights issues
and situations that require its attention throughout the year21. Since the replacement of the UN
Commission on Human Rights, the Council has engaged in rigorous investigations of allegations
of breaches of all generation sets of human rights in UN member states, while at the same time
addressing important thematic human rights issues such as freedom of association and assembly,
freedom of expression, freedom of belief and religion, women's rights, sexual violence, torture,
LGBT rights, economy freedom and the rights of racial and ethnic minorities22. Sixteen years
down the line following its establishment, the Council has carried out its mission to promote

18
www.htpps://www.ohchr.org. Accessed on 18th September 2021.
19
General Assembly (GA) Resolution 60/251.
20
GA Resolution 60/251, paras 2, 3, 5.
21
A Practical guide for NGO Participants: United Nations Human Rights Council. 2013 edition, p. 1
22
March 15, 2006 (by resolution A/RES/60/251)

21
universal respect for the protection of all human rights in a myriad of both traditional and
innovative ways23. These include public scrutiny of every country‘s human rights performance
in accordance with their international obligations; special sessions devoted to addressing gross
and systematic violations; fact-finding investigations; country visits by independent experts
charged with monitoring issues ranging from violence against women to freedom of expression;
and technical assistance and capacity-building24. In ensuring the protection of human rights as
already alluded to, the Council employs the following mechanisms as discussed below.

3.6. Special Procedures

The special procedures are experts who independently investigate and report on human rights
situations in countries. These experts are called Special Rapporteurs or Independent Experts and
are usually five at the time and are chosen by the HRC. These procedures systematically engage
in actions against supposed human rights violations. To bring attention to these alleged violations
the procedures communicate their concerns to the government of the country in question and if
permitted by the country the rapporteurs will undertake an on the spot visit. There seem to be
wide consensus that the special procedures play a crucial role in shaping human rights protection
and promotion. According to PICCONE, Theodore J25, Special procedures play a critical role in
shaping the normative content of human rights, while at the same time assessing how states
comply with such rights in practice and proposing concrete measures to improve respect for
them.

Special procedures with thematic mandates include Special Rapporteurs on Adequate Housing,
the Right to Education, the Question of Human Rights and Extreme Poverty, the Right to Food
and the Right to Health, who are able to receive information on specific allegations of human
rights violation and send urgent appeals or letters of allegation to governments asking for
clarification, as well as reporting on visits, investigations and recommendations.

Below is a review of how special procedures undertake their mandate;

23
Christophe Golay et al, (2012). SUR FILE ON DEVELOPMENT AND HUMAN RIGHTS: The contribution of
the UN special procedures to the human rights and development dialogue. Issue No. 17
24
Ibid, Christophe Golay et al, (2012).
25
PICCONE, Theodore J. (2012). Catalysts for Change: how the UN‘s independent experts promote human rights.
Washington, DC: Brookings Institution Press, 2012, p.96.

22
  Independent Experts

Generally, an expert is one who has acquired a special skill in or knowledge of a particular
subject through practice, implicit or professional training and/ or extensive learning or imitation.
Expertise is now a top concern and requisite activity of any international organization including
the United Nations26. When it comes to the UN Human Rights Council, experts include qualified
individuals appointed by the HRC to oversee a specific thematic area. Independent Experts are
employed under special procedures to ensure protection and promotion of human rights around
the globe. For example in order to realize fulfillment of Millennium Development Goals (MDG),
as far as country visits are concerned, the Independent Expert on the effects of foreign debt
conducted country visits to Australia and the Solomon Islands in 201127 and to Burkina Faso in
200828, where the primary objective was to assess the domestic development programmes and
policies implementing the MDGs against the realization of Economic, Social and Cultural Rights
(ESC). Christophe Golay et al29, emphasizes the importance of the dialogue initiated by such
Independent Expert visits as a valuable mechanism in protecting human rights because the
recommendations that come may also constitute a starting point for further advocacy policies.

 Special Rapporteurs

Special Rapporteurs often conduct fact-finding missions to countries in order to investigate

allegations of human rights violations30. When permitted by the country, the rapporteurs will
undertake an on the spot visit to such a particular state. During the visits they undertake various
activities such as:

―act on individual cases and concerns of a broader, structural nature by sending

communications to States and other actors bringing alleged violations or abuses to their

26
Marie-Line Germain & Carlos E. Ruiz (2008). Defining Expertise across Nations: Myth or Reality of a Global
Definition? St. Thomas University, pp 3-8.
27
United Nations (2012). Independent expert on the Issue of Human Rights Obligations Related to Access to Safe
Drinking Water and Sanitation, July 2012
28
United Nations (2012).Office of the High Commissioner for Human Rights. If Rio + 20 is to Deliver,
Accountability Must be at its Heart: an open letter from special procedures mandate holders of the Human Rights
Council to States negotiating the outcome document of the Rio +20 Summit, July, 2012.
29
Christophe Golay et al, (2012). SUR FILE ON DEVELOPMENT AND HUMAN RIGHTS: The contribution of
the UN special procedures to the human rights and development dialogue. Issue No. 17
30
Joanna Naples-Mitchell, ‗Perspectives of UN Special Rapporteurs on their Role: Inherent Tensions and Unique
Contributions to Human Rights‘, International Journal of Human Rights 15, no. 2 (2011): this issue.

23
 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‖.31

It should be emphasized that, Special Rapporteur can only visit countries that have agreed to
invite them. Various countries have extended invitations to thematic special procedures, which
entails that they are prepared to receive a visit from any mandate- holder. Thematic special
procedures involve the system of working groups, independent experts, and special rapporteur.
For example, in April 2016, Zambia agreed to the request and invited the Special Rapporteur on
the rights of persons living with disabilities. The objective of the invitation was to assess the
enjoyment, challenges and opportunities facing disabled people in Zambia32. The Special
Rapporteur had an opportunity to explore issues pertaining to human rights in Zambia in the light
of international human rights norms and standards. Various issues on the progress, policies,
legislation and programmes designed to promote and protect the rights of people living with
disabilities in Zambia were explored and recommendations were made on the things needed to
put in place in order to strengthen the efforts in ensuring protection of minority rights
particularly of the disabled.

Similarly, in the DRC, the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Democratic Republic of the Congo, Iulia Motoc, visted that
country in 2003 at the invitation of the Government. During the mission, Ms. Motoc visited
Kinshasa, Kindu in the province of Maniema, Lubumbashi, and Likasi in the province of
Katanga. She also met with the President of the Democratic Republic of the Congo, Joseph
Kabila, and the Heads of the National Assembly and Senate, as well as the Minister for Foreign
Affairs and International Cooperation and the Minister for Justice and Human Rights 33. The
purpose of the visit was to tackle questions related to massive violations of human rights,
impunity, national reconciliation, illegal exploitation of natural resources, and the
administration of justice. She also dealt with difficulties facing vulnerable groups, especially

31
Ibid.
32
United Nations Human Rights Report of the Special Rapporteur on the Rights of Persons with Disabilities on her
visit to Zambia, December 2016. P.3
33
Mission report of the Special Rapporteur on the situation of human rights in DR Congo: Note by the
Secretary-General (E/CN.4/2003/44). Commissioner on Human Rights Fifty ninth Session .

24
female victims of sexual violence, children associated with armed groups and indigenous
persons. The Special Rapporteur presented her evaluation of the situation in the Democratic
Republic of the Congo as well as her recommendations to the sixtieth session of the
Commission on Human Rights which met in Geneva in March and April 2004 34 .

It is evident that aside from fact-finding missions, Rapporteurs regularly assess and verify
complaints from alleged victims of human rights violations. Once a complaint is verified as
legitimate, an urgent letter or appeal is sent to the government that has allegedly committed the
violation. If no complaint has been made, Rapporteurs may intervene on behalf of individuals
and groups of people of their own accord.

 Reporting Procedures

After the special procedures mandate holders assess a specific human rights situation, they may
report their findings or thematic studies to the Human Rights Council or the UN General
Assembly and release public statements to the media. Special procedures mandate holders report
to the Human Rights Council annually35. Most special procedures also report to the UN General
Assembly.

The Human Rights Council reviews country-specific mandates annually and thematic mandates
every three years. This review is one of the mechanisms put in place to assess the extent of
human rights promotion and protection of a specific country(s) under review36. These
independent missions at the request of a mandate holder and subsequent invitation from the
country concerned allow Special Procedures to review, understand, and work with governments
to improve on-the-ground enjoyment of human rights.

 Working Groups

The Council functions through a series of working groups as one of the mechanisms employed to
ensure promotion and protection of human rights.

34
Ibid.
35
PICCONE, Theodore J. (2012).p.124
36
Ibid.

25
One of the main functions of the Working Group is to promote the dissemination and
implementation of the ―Protect, Respect, Remedy‖ framework outlined in the Guiding Principles
on Business and Human Rights. The Guiding Principles are a reference point for the Working
Group as it conducts country visits, promotes best practices on the implementation of the
Guiding Principles, and makes recommendations concerning the development of domestic law
related to business and human rights37. The Working Group also dialogues with governments,
business enterprises, UN bodies, specialized agencies, funds, programmes, civil society groups,
and other relevant actors about business and human rights38.

Further, Working Group carry out country visits, on the basis of an invitation from the country
concerned. Through country visits, the Working Group studies the situation within the country
and can then make recommendations to the State about how to address the adverse impacts of
business activities on human rights39. In addition, working groups may encompass Working
Group on Communications, Working Groups on Situations and Universal Periodic Review.

The Universal Periodic Review is the process where all member states of the UN are reviewed in
their relation to human rights and was created in 2008. This is done every fourth and a half year
to 193 states, 42 states are reviewed per year. The aim of the UPR is to give states a chance to
discuss situations in their country, what challenges they have got and how they are trying to
improve their situation in regard to human rights. The UPR mechanism is based on reports
coming from different sources, one of them being contributions from non-governmental
organizations (NGOs). NGOs with consultative status with the UN are the only ones accredited
to participate in the human rights council session as Observers40. As Observers, NGOs can:
attend proceedings, submit written statements, participate in debates, and make oral interventions
to the Council.

Working Group on Communications and Situation consists of experts designated by the

Advisory Committee of the Council from among its members, one from each regional group.
The experts serve for three years with the possibility of one renewal. The experts determine

37
Christophe Golay et al, (2012). SUR FILE ON DEVELOPMENT AND HUMAN RIGHTS: The contribution of
the UN special procedures to the human rights and development dialogue. Issue No. 17.
38
Ibid.
39
United Nations Human Rights Council: available at www.ochr.org. Accessed on 01/16/ 2022.
40
A Practical guide for NGO Participants: United Nations Human Rights Council. 2013 edition, p. 3

26
whether a complaint deserves investigation. On the basis of the information and
recommendations available, the Working Group will presents the UNHRC with a report on
consistent patterns of gross and reliably attested violations of human rights and fundamental
freedoms and makes recommendations to the UNHRC on the course of actions to take41.

 The Communications/Complaints Procedure

This is one of the important mechanisms the United Human Rights Council has put in place to
ensure protection and promotion of human rights around the world. This is another important
tool at the disposal of Special Procedures mandate-holders. The UNHRC communications or
complaint procedure was established by the UNHRC Resolution for the purposes of reporting of
consistent patterns of gross and reliably attested violations of human rights and fundamental
freedoms in any part of the world and under any circumstances42.The UNHRC has since set up
two working groups for its Complaint Procedure.

The Complaint Procedure serves the identification of grave and verifiable human rights
violations. The main aim of this procedure is to identify and contain human rights abuses were
indications are clear regarding regular and systematic patterns of violations of human rights in a
state. If indications of regular and vast human rights abuse patterns are found, they are relayed to
a working group with one representative of all regional groups 43. The working group report is
forward to the human rights council which explains the general situation in the country in
question and suggestion on measures to be taken to ensure protection of human rights.

Complaints can be regarding any state in violation of human rights, regardless of whether it has
ratified a particular treaty. Complaints are confidential and the UNHRC will only communicate
with the complainant, unless decision is made to publicize it. The complaint procedure is
victims-oriented44, an approach that focuses on the needs and concerns of a victim to ensure the
compassionate and sensitive delivery of services in a non - judgmental manner.

41
United Nations Human Rights Council, available at: www.ochr.org. Accessed on March 1 2022.
42
June 18, 2007 (by UNHRC Resolution 5/1)[51]
43
www.humanrights.chro. Complaint Procedure update: 19.08.2011, accessed on 5 th March 2022
44
UNHRC Resolution 5/1, paragraph 86

27
  Decisions of the International Court of Justice and International Criminal Court
The UN human rights protective mechanism is also achieved through judicial system. The
international court is a UN body, which aims to resolve civil law disputes between member
states. It contributes to the creation of human rights law. For example, it has issued important
judgments regarding the protection of minority rights. It has also contributed to human rights law
in respect of the consular rights of citizens who are detained whilst abroad. The International
Criminal Court takes on cases relating to war crimes, crimes against humanity, and genocide and
mass human rights violations against citizens. For example, as of June 2023, the ICC currently
has cases ongoing against individuals allegedly involved in atrocities in Sudan. The International
Criminal Court has helped define human rights law on the topic of crimes against humanity.

3.7. Unit summary

The United Nations (UN) is an international organization made up of 193 member states. The
UN has played a huge role in the creation of human rights law. This unit has investigated the
mechanisms that the United Nations Human Rights Council employs since its establishment in
2006 to advance and defend human rights globally. The Human Rights Council carries out its
mission to promote universal respect for the protection of all human rights in a myriad of both
traditional and innovative ways. These include public scrutiny of every country‘s human rights
performance in accordance with their international obligations; special sessions devoted to
addressing gross and systematic violation; fact-finding investigations; country visits by
independent experts charged with monitoring issues ranging from violence against women to
freedom of expression; and technical assistance and capacity-building. UNHRC monitoring
mechanisms for the protection and promotion of human rights includes a system of special
procedures, expert advice, and a complaint procedure.

3.8. End of unit Three revision exercise

 Discuss the mechanisms used by the UN in promoting and protecting human rights and
argue whether these mechanisms are adequate.
 In your opinion, do you think the UN is effective in the area of human rights protection
at a global stage?

28
 UNIT FOUR

INTERNATIONAL BILL OF RIGHTS

4.1. Objectives

At the end of this unit, students should be able to;

- Understand what makes up the international bill of rights

- Explore the importance of the international bill of rights in the protection of human rights
at a global, regional and domestic scale
- Apply theory to practice

4.2. Introduction

The international framework for the protection of human right is the body of international law
which makes up the International Bill of Rights designed to promote human rights on
international, regional and domestic spheres. The international human rights framework is
designed to be legally, politically and morally binding set of principles for governments
including the government of Zambia. This unit will explore in detail on the international bill of
rights by analysisng various provisions in the treaties.

4.3. What is the International Bill of Rights?

At domestic level, Constitutions of various countries contain a part where the fundamental rights
of citizens and aliens are spelled out in general. The part that provides for such rights is usually
known as the bill of rights. Similarly, at international stage, nations have adopted the
international bill which articulates minimum standards for the international community to follow
in the protection and promotion of human rights. It is suggested that the International Bill of
Human Rights (IBHR) currently constitutes the following instruments:45

45
In some texts, the International Bill of Human Rights only refers to the Universal Declaration of Human Rights
and the two Covenants. Fact Sheet No.2 (Rev. 1) ―The International Bill of Human Rights‖ refers to five
instruments. It is the opinion of this author that the Optional Protocol to the Covenant on Economic, Social and
Cultural Rights, adopted in 2008, should now be considered an integral part of the International Bill of Human

29
  Universal Declaration of Human Rights (UDHR) 1948,
 International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966,
 International Covenant on Civil and Political Rights (ICCPR) 1966,
 (First) Optional Protocols to the ICCPR 1966
 Second Optional Protocol to the ICCPR 1989,
 Optional Protocol to the ICESCR 2008

Together, these instruments are regarded as the bedrock of the international human rights system
as articulated under the auspices of the United Nations. With its elements taken together, the
IBHR is a comprehensive catalogue of individual human rights and fundamental freedoms.
Suffice to say though that each of the documents, beginning with the UDHR, is significant in its
own right. Each is an individual international human rights instrument with its own moral,
political and legal characteristics, albeit a part of the larger corpus of the international human
rights normative arrangements.

The human rights instruments that make up the international bill of rights are discussed in detail
below;

 Universal Declaration of Human Rights (1948)

The building of an international normative and institutional structure for the promotion and
protection of human rights commenced with the adoption of the Universal Declaration of
Human Rights (UDHR or “the Declaration) on 10 December in 1948 by the General
Assembly.46 The adoption of the UDHR was inspired by the recognition that the inherent dignity
and the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world47 and that ―the peoples of the United Nations have in the
Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the

Rights, as it supports the ICESCR which is an integral part of the International Bill of Human Rights like the two
optional protocols to the ICCPR do.
46
At the time, UN membership stood at only 56 States. Today there are over 190 Member States.
47
UDHR Preamble paragraph 1

30
human person and in the equal rights of men and women and have determined to promote social
progress and better standards of life in larger freedom.‖48

The UDHR was proclaimed as a common standard of achievement for all peoples and all
nations49 and provided further inspiration in the development of the international or universal
human rights system.50 The Commission on Human Rights drafted the UDHR over a period of
two years under the leadership of Eleanor Roosevelt.51 Following many debates over the
proposed text of the Declaration, the UN General Assembly unanimously adopted the UDHR in
resolution 217 A (III) at its third session in Paris on 10 December 1948. This was momentous in
the history of the world, ―a remarkable achievement in many respects…the first time an
international organisation had agreed on a joint statement of human rights….‖.52 It marked the
first time that the rights and freedoms of individuals were set forth in such detail and also
represented the first international recognition that human rights and fundamental freedoms
accrued to every person, everywhere. In this regard, the adoption of the UDHR was an
unprecedented event in the history of humankind.

In the preamble the UDHR begins by recognizing that the inherent dignity and the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice and
peace in the world.53 It recalls that ―the peoples of the United Nations have in the Charter
reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person

48
Ibid, paragraph 5
49
Ibid, paragraph 8
50
See for example the views of the 1993 Second World Conference on Human Rights: ―Emphasising that the
Universal Declaration of Human Rights, which constitutes a common standard of achievement for all peoples and all
nations, is the source of inspiration and has been the basis for the United Nations in making advances in standard
setting as contained in the existing international human rights instruments, in particular the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,….‖ Vienna
Declaration and Programme of Action,(Preamble).
51
There were other influential personalities in the drafting process. For an overview of some of the key individual
players, see Samnoy A., ―The Origins of the Universal Declaration of Human Rights‖ in Alfredsson and Eide (eds),
The Universal Declaration Of Human Rights: A Common Standard Of Achievement (Kluwer Law International,
1999), pp.6-9.
52
Ibid., p. 3
53
Paragraph 1

31
and in the equal rights of men and women and have determined to promote social progress and
better standards of life in larger freedom‖.54

Notably, the preamble puts the principles proclaimed by the UDHR into a universal context by
stating that ―a common understanding of these rights and freedoms is of the greatest importance
for the full realisation of this pledge‖.55 The UDHR is then proclaimed ―as a common standard
of achievement for all peoples and all nations, to the end that every individual and every organ of
society…shall strive by teaching and education to promote respect for these rights and
freedoms…‖.56 Alfredsson and Eide sum up the ―common standard of achievement‖ as
follows:57

“Prominent participants from all over the world contributed to the drafting of the UDHR.
It is often argued that the UDHR is predominantly Western in its approach, but the roots
of the UDHR spread in many directions. Admittedly, the geographical balance among
the delegates was different from today’s composition of the world community, and
indigenous peoples and minorities were not represented during the drafting and adoption
stages, but the drafters’ foresight in meeting popular and universal desires and demands
has clearly withstood the test of time.”

In a total of 30 articles, the UDHR outlines the rights and freedoms of every human being. The
first two articles are significant as they lay down the universal foundation of human rights.
Article 1 reads:

All human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.

Civil and political (―first generation‖) rights in the UDHR are set out in Articles 3 to 21. These
include the right to life, liberty and security of person; prohibition of slavery, of torture and
cruel, inhuman or degrading treatment; right not to be subjected to arbitrary arrest, detention or
exile; right to a fair trial in both civil and criminal matters, the presumption of innocence and the
prohibition against the application of ex post facto laws and penalties. Others are the right to

54
Paragraph 5
55
Paragraph 7, emphasis added.
56
Paragraph 8
57
Supra, note 28, p. xxv-xxvi.

32
privacy and the right to own property; freedom of speech, religion, assembly and movement,
including the right to leave any country and to return to one‘s country. The UDHR also
proclaims the right to seek and to enjoy in other countries asylum from persecution; right to a
nationality and the right to take part in the government of one‘s country, directly or indirectly
through freely chosen representatives. The UDHR states that the will of the people shall be the
basis of the authority of government and this requires periodic and genuine elections by universal
suffrage.

Economic, social and cultural (―second generation‖) rights are set out in Articles 22 to 27,
including the right to social security; the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment; the right to equal pay for
equal work and to just and favourable remuneration.

There is also the right to form and to join trade unions; the right to rest and leisure, including
reasonable limitation of working hours and periodic holidays with pay; the right to a standard of
living adequate for the health and well-being of oneself and one‘s family, including food,
clothing, and housing and medical care and necessary social services. The Declaration also
proclaims the right to security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond one‘s control.

Motherhood and childhood, it is proclaimed, are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection. In Article
26, everyone has the right to education and it shall be free and compulsory, at least in the
elementary and fundamental stages.

Technical and professional education shall be made generally available and higher education
shall be equally accessible to all on the basis of merit. Article 27 protects everyone‘s right to
freely participate in the cultural life of the community, to enjoy the arts and to share in
scientific advancement and its benefits. Furthermore, everyone has the right to the protection
of the moral and material interests resulting from any scientific, literary or artistic production
of which he is the author. The UDHR in article 28 calls for a conducive social and
international order in which all human beings can enjoy their rights and freedoms. This
provision underscores the need for the international community to bring about an international

33
order in which all human beings in all the corners of the Earth have access to the rights and
freedoms proclaimed in the UDHR. Human beings are the same everywhere and should have
access to the same rights and freedoms. Article 29 reminds human beings that human rights
have corresponding duties and responsibilities to fellow human beings and to the community in
which they live. The harmonious relationship between the person and his or her community
ensures the full development of that person‘s potential.58

The rights and freedoms proclaimed in the UDHR must be exercised and enjoyed by every
person taking into account the rights of others or an overriding societal interest. For instance, the
right to freedom of expression and opinion does not mean the right to insult other people or to
disparage their character without justification. Freedom of assembly relates to peaceful
assembly and not to assemble for an unlawful purpose, such as rioting or other disorderly
behavior or motive inimical to the public interest.

Article 30 protects the UDHR from any unfavorable or abusive interpretation that would render
the proper enjoyment of the rights and freedoms it declares ineffective or contrary to the
purposes and principles of the UN.59 Sometimes, the activities that States, groups of people or
individuals engage in could make the practical enjoyment of human rights impossible. Such
activities are prohibited since they would make the whole essence of protecting human rights
useless.

Strictly speaking, the UDHR is not a treaty. It was adopted as a resolution of the UN General
Assembly. In this regard, it is not a treaty subject to formal ratification or accession processes. It
was meant to be a statement of intention, a revelation of ideals which humanity should aspire to
achieve. However, despite its origins, debate has raged on over the years as to the international

58
Article 29: (1) Everyone has duties to the community in which alone the free and full development of his
personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a
democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
59
Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth
herein.

34
legal significance and influence of the UDHR. Some have argued that the UDHR has
‗transformed‘ into a legally binding international document. Proponents of the assumed binding
character of the UDHR have argued that consistent reliance on the UDHR when applying the
human rights provisions of the UN Charter compels the conclusion that it has come to be
accepted as an authoritative interpretation of these provisions.

It will be recalled that the UN Charter did not expressly indicate the rights and freedoms it was
referring to. It has been argued that the UDHR should now be considered as an authoritative
interpretation of the UN Charter with respect to its reference to human rights. It spells out in
considerable detail the meaning of the phrase ‗human rights and fundamental freedoms,‘ which
Member States agreed to in the Charter to promote and observe.

 Importance of the Universal Declaration of Human Rights

 For States that have not signed and/ratified the International Covenants, the UDHR may
be the only applicable international human rights instrument.
 The UDHR has been used as the basis for the constitutive documents of many new,
emerging and newly decolonized States.
 The UDHR is widely perceived to be the definitive statement on human rights in
contemporary society. For example, in the United Nations Millennium Declaration
(UNGA resolution 55/2 of 8 September 2000), UN Member States resolved ―to respect
and uphold the Universal Declaration of Human Rights.‖
 Most international human rights instruments subsequently adopted by the UN have a
basis in the UDHR and give further definition and cognizance to the rights in the UDHR
(provides a framework of human rights which many documents expand into legally
binding texts).

 The Two International Covenants and their Protocols

Part E of the United Nations General Assembly Resolution 217(III) of 10 December 1948
envisaged an International Bill of Human Rights that included:

 A Declaration;

35
  A Covenant on Human Rights; and
 Measures of Implementation.

After protracted debate, the General Assembly agreed to the drafting of two distinct instruments.
Thus, the provisions of the UDHR became two international instruments: the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). Two covenants resulted from the ‗the treaty elaboration‘
stage of the IBHR,60 the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights (ICCPR.

The ICCPR elaborated on the provisions dealing with civil and political rights, while the
ICESCR expanded on economic, social and cultural rights.61 In their preambles both instruments
recall the terms of the UDHR and declare the rights set forth in the Covenants as being founded
in the inherent dignity of the human person. They also underline the indivisibility and
interdependence of all human rights by stating that ‗the ideal of free human beings enjoying
freedom from fear and want can only be achieved if conditions are created whereby everyone
may enjoy his civil and political rights, as well as his economic, social and cultural rights‘.

60
After protracted debate, the General Assembly agreed to the drafting of two distinct instruments rather than one
single legally binding covenant. Thus, the provisions of the UDHR became to international instruments: the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Those in favour of a single covenant maintained that human rights could not be
clearly divided into different categories, nor could they be so classified as to represent a hierarchy of values. All
rights should be promoted and protected at the same time. Without economic, social and cultural rights, civil and
political rights might be purely nominal in character; without civil and political rights, economic, social and cultural
rights could not be long ensured. Those in favour of drafting two separate covenants argued that civil and political
rights were enforceable, or justiciable, or of an absolute character, while economic, social and cultural rights were
not or might not be; that civil and political rights were immediately applicable, while economic, social and cultural
rights were to be progressively implemented; and, that civil and political rights were generally against the State (i.e.,
against unlawful and unjust action of the State) while economic, social and cultural rights were rights which the
State would have to take positive action to promote.
61
The number of rights included is greater than in the UDHR. The ones not contained in the UDHR are in articles
10, 11, 20, 24 and 27. On the other hand, the right to property, which was included in the UDHR (art. 17), is not
included in the ICCPR.

36
The two Covenants are regarded as the most comprehensive international treaties on civil,
political, economic, social and cultural rights. Zambia acceded to both instruments on 10 April,
1984. When the decision was finally made to adopt two covenants, it was resolved that as many
provisions as possible in the two Covenants should be similar. In this regard, the Preamble to
each Covenant is substantially the same, as are Articles 1, 3 (mutatis mutandis), 5, and Articles
24-31 ICESCR and Articles 46-53 ICCPR. In addition, several of the same rights are to be
found in both Covenants: the right to self-determination (common Article 1), the right to join and
form trade unions (Articles 8 of the ICESCR, Article 22 of the ICCPR), and the right to the
protection of the family (Article 10 of the ICESCR, Article 23 of the ICCPR). As of May 2022,
there were 169 parties to the ICESCR and 172 parties to the ICCPR. Zambia acceded to both
instruments on 10 April 1984.

 International Covenant on Civil and Political Rights (ICCPR) 1966

The ICCPR expanded on the UDHR provisions in articles 3 to 21. It is regarded as the most
comprehensive international treaty on civil and political rights (―first generation‖ rights). The
Preamble recalls the terms of the UDHR and declares the rights set forth in the Covenant as
being founded in the inherent dignity of the human person. It further underlines the indivisibility
and interdependence of all human rights by stating that ‗the ideal of free human beings enjoying
freedom from fear and want can only be achieved if conditions are created whereby everyone
may enjoy his civil and political rights, as well as his economic, social and cultural rights‘.

The ICCPR protects the following rights and freedoms:

 Right to life
 Freedom from torture and inhuman treatment
 Freedom from slavery and forced labour
 Right to liberty and security
 Right of detained persons to be treated with humanity
 Freedom from imprisonment for debt
 Freedom of movement and of choice of residence

37
  Freedom of aliens from arbitrary expulsion
 Right to a fair trial
 Protection against retroactivity of the criminal law
 Right to recognition as a person before the law
 Right to privacy
 Freedom of thought, conscience and religion
 Freedom of opinion and of expression
 Prohibition of propaganda for war and of incitement to national, racial or religious hatred
 Right of assembly
 Freedom of association
 Right to marry and found a family
 Rights of the child
 Political rights
 Equality before the law
 Rights of minorities
Note: the number of rights included is greater than in the UDHR. The ones not contained in the
UDHR are in articles 10, 11, 20, 24 and 27. On the other hand, the right to property, which was
included in the UDHR (art. 17), is not included in the ICCPR.

 Optional Protocols

The ICCPR has two Optional Protocols. The (First) Optional Protocol (OP1) was adopted at the
same time as the two Covenants in 1966 and it also came into force in 1976. It provides for an
individual complaints mechanism for rights guaranteed in the ICCPR.

As of June 2022 there were 116 State parties to OP1.

The Second Optional Protocol (OP2) was adopted by the UN General Assembly in 1989 and it
entered into force in 1990. This Protocol aims at the abolition of the death penalty in countries
that ratify. According to the Preamble, the States parties note that Article 6 of the ICCPR (which
protects the right to life) refers to the abolition of the death penalty in terms that strongly suggest

38
that abolition is desirable and that all measures of abolition of the death penalty should be
considered as progress in the enjoyment of the right to life. According to Article 1 of the Second
Protocol, no one within the jurisdiction of a State party shall be executed and each State party
must take all necessary measures to abolish the death penalty within its jurisdiction. As of June
2021 there were 86 States parties to the Second Optional Protocol. Zambia has not yet become
a party to the second protocol.

 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

The ICESCR is regarded as the foundational instrument on economic, social and cultural rights.
The Preamble is worded in similar terms to that of the ICESCR. The ICESCR recognises the
rights to:
 Self-determination (art.1)
 Equality for men and women (art.3)
 Work and favourable conditions of work, including fair wages, equal pay for equal work
and holidays with pay (arts. 6 and 7)
 Form and join trade unions, including the right to strike (art.8)
 Social security (art.9)
 Protection of the family, including special assistance for mothers and children (art.10)
 An adequate standard of living, including adequate food, clothing and housing and
continuous improvement of living conditions (art.11)
 The highest attainable standard of physical and mental health and health care (art.12)
 Education (art.13)
 Free and compulsory primary education and secondary and higher education generally
accessible to all (art.14).
 Participation in cultural life; benefits from scientific progress; and, benefit from the
protection of scientific, literary or artistic production of which one is the author (art.15)

 Optional Protocol to the International Covenant on Economic, Social and Cultural

Rights

39
In 1993, the World Conference on Human Rights recommended the elaboration and adoption of
an optional protocol to the ICESCR that would grant individuals and groups the right to submit
communications (complaints) concerning non-compliance with the ICESCR. On 10 December,
2008, the UNGA adopted the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights. The protocol provides for individual complaints, inter-State
complaints and inquiries. As of June 2021, there were 24 States parties to the protocol. Zambia
is not yet a party.

4.4. Unit summary

The ICCPR, ICESCR, UDHR, and the two Optional Protocols to the ICCPR, together, these
instruments are regarded as the bedrock of the international human rights (IBHR) system as
articulated under the auspices of the United Nations. With its elements taken together, the IBHR
is a comprehensive catalogue of individual human rights and fundamental freedoms. Suffice to
say though that each of the documents, beginning with the UDHR, is significant in its own right.
Each is an individual international human rights instrument with its own moral, political and
legal characteristics, albeit a part of the larger corpus of the international human rights normative
arrangements.

4.5. End of unit 4 revision questions

1. Explain what is meant by the ―International Bill of Rights‖.

2. State the difference between the ICCPR and the ICESCR.

3. Explain the substance of the UDHR, 1948.

4. Explain the significance of the Second Optional Protocol to the ICCPR.

40
 UNIT FIVE

REGIONAL HUMAN RIGHTS SYSTEMS

5.1. Learning objectives

At the end of this unit, students should be able to;

 Familiarize themselves with the major regional human rights instruments and their
different modes of implementation;

 Have a basic understanding of how these human rights instruments can be used
principally at the domestic level but also to some extent at the regional level, for the
purpose of bringing complaints before the monitoring organs.

 Apply theory to practice

5.2. Introduction

In this unit, there are three regional systems that will be discussed for the protection of human
rights, namely: the African, the Inter-American and the European systems. This contribution
provides a comparative overview of their salient features and focuses on key procedural and
institutional aspects of these systems.

Human rights can be protected by law on the domestic or the international level. International
human rights law, for its part, has different layers, including the global system, in which the
United Nations (UN) is the main player, and which is potentially applicable in one form or
another to every person in the world; and the regional systems which cover three parts of the
world – Africa, the Americas and Europe. If one‘s rights are not protected on the domestic level,
the international system comes into play, and protection can be provided by the global or the
regional system (in those parts of the world where there are such systems)62.

62
C. Heyns, W. Strasser & D. Padilla, ‖A schematic comparison of regional human rights systems‖, African Human
Rights Law Journal, v. 3, 2003

41
All three regional human rights systems mentioned above form part of regional integration
systems with a much broader mandate than just human rights – in the case of Africa, the parent
organization is the African Union (AU); in the Americas it is the Organization of American
States (OAS); and in Europe it is the Council of Europe (CoE). Other parts of the world also
have regional integration bodies, but without a similar human rights mandate.

Although there were initially questions, especially from the UN perspective with its emphasis on
universality, about the wisdom of some regions having their own human rights systems, the
benefits of having such systems are widely accepted today. Countries from a particular region
often have a shared interest in the protection of human rights in that part of the world, and the
advantage of proximity in terms of influencing each other‘s behavior and ensuring compliance
with common standards which the global system does not have.

Regional systems also allow for the possibility of regional values to be taken into account when
human rights norms are defined – obviously at the risk, if this goes too far, of compromising the
idea of the universality of human rights. The existence of regional human rights systems allows
for enforcement mechanisms which can resonate better with local conditions than a global,
universal system of enforcement. A more judicial approach to enforcement may be appropriate in
one region, as in Europe, for example, while an approach which also allows room for non-
judicial mechanisms such as commissions and peer review may be more appropriate in a region
such as Africa. The global system does not have such flexibility. This unit will limit itself to
describing their major features.

5.3. The African Human Rights System

The African human rights system consists of the African Charter on Human and Peoples‘ Rights,
1981, African Charter on the Rights and Welfare of the Child, 1990 and the Protocol to the
African Charter on the Rights of Women in Africa.

The implementation under the African human rights regime is done through the African
Commission and the African Court on Human and People‘s Rights.

These instruments are discussed below;

42
  The African Charter on Human and Peoples‟ Rights, 1981

The adoption of the African Charter on Human and Peoples‘ Rights in 1981 was the beginning of
a new era in the field of human rights in Africa. It entered into force on 21 October 1986, and as
of 29 April 2002 had 53 States parties. Although strongly inspired by the Universal Declaration
of Human Rights, the two International Covenants on human rights and the regional human
rights conventions, the African Charter reflects a high degree of specificity due in particular to
the African conception of the term ―right‖ and the place it accords to the responsibilities of
human beings. The Charter contains a long list of rights, covering a wide spectrum not only of
civil and political rights, but also of economic, social and cultural rights.

The African Charter further created the African Commission on Human and Peoples‘ Rights, ―to
promote human and peoples‘ rights and ensure their protection in Africa‖ (art. 30). In 1998, the
Protocol to the Charter on the Establishment of an African Court of Human Rights was also
adopted, and came into force in 2004. Lastly, an additional protocol concerning the rights of
women in Africa within the framework of the African Commission on Human and Peoples‘
Rights was adopted in 2003.

The undertakings of the States parties are;

The States parties to the Charter ―shall recognize the rights, duties and freedoms enshrined
[therein] and shall undertake to adopt legislative or other measures to give effect to them‖ (art.
1). It is further provided that they ―shall have the duty to promote and ensure through teaching,
education and publication, the respect of the rights and freedoms contained in the present
Charter, and to see to it that these freedoms and rights as well as corresponding obligations and
duties are understood‖ (art. 25). Moreover, the States parties ―shall have the duty to guarantee
the independence of the Courts and shall allow the establishment and improvement of
appropriate national institutions entrusted with the promotion and protection of the rights and
freedoms guaranteed by the ... Charter‖ (art. 26). These two latter provisions thus emphasize the
need for education, information and an independent administration of justice in order to ensure
the effective protection of human rights. Lastly, several provisions of the Charter are also
couched in the form of duties of the States parties to ensure certain rights, such as, for instance,

43
the ―promotion and protection of morals and traditional values recognized by the
community‖(art. 17(3) and the right to development (art. 22(2).

 Rights in the Charter

The African Charter on Human and Peoples‘ Rights recognizes the following civil, political,
economic, social and cultural rights of individual human beings, in particular:

Freedom from discrimination, torture, slavery, inhumane treatment, right to equality, right to
education, right to take part in cultural life of one‘s country, right to health etc. (Read articles 2
to 24 to have an understanding of the rights provided for in the Charter).

Next, the African Charter recognizes the following rights of peoples, namely:

the right of peoples to equality – art. 19; the right to existence of all peoples, including the right
to self-determination; the right of all peoples to assistance in their liberation struggle against
foreign domination, ―be it political, economic or cultural‖ – art. 20; the right of all peoples freely
to dispose of their wealth and natural resources – art. 21; the right of all peoples to their
economic, social and cultural development – art. 22; the right of all peoples to national and
international peace and security – art. 23; the right of all peoples ―to a general satisfactory
environment favourable to their development‖ – art. 24

 Individual duties under the African Charter

Without providing any details, article 27(1) deals with individual duties toward certain groups by
stipulating, in general terms only, that; ―every individual shall have duties towards his family and
society, the State and other legally recognized communities and the international community‖.
Next, article 28 concerns the individual‘s duty towards other individuals, providing that ―every
individual shall have the duty to respect and consider his fellow beings without discrimination
and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and
tolerance‖. Lastly, article 29 enumerates several other specific individual duties, such as the
duties: to preserve the harmonious development of the family – art. 29(1); to serve one‘s
national community – art. 29(2); not to compromise the security of the State – art. 29(3); to

44
preserve and strengthen the social and national solidarity – art. 29(4); to preserve and strengthen
the national independence and territorial integrity of one‘s country – art. 29(5); to work to the
best of one‘s abilities and competence, and to pay taxes – art. 29(6) to preserve and strengthen
positive African cultural values – art. 29(7); and, finally, the duty to contribute to the best of
one‘s abilities to the promotion and achievement of African unity – art. 29(8).

 Derogations and limitations of rights under the Charter

Unlike the International Covenant on Civil and Political Rights and the American and European
Conventions on Human Rights, the African Charter does not provide for any right of derogation
for the States parties in public emergencies. This absence has been interpreted by the African
Commission on Human and Peoples‘ Rights to mean that derogations are not permissible under
the African Charter.63

The exercise of many of the rights and freedoms guaranteed by the African Charter is
conditioned by limitation provisions, which in some cases indicate specific aims for which
limitations might be imposed, but which in others simply refer back to the conditions laid down
in national law. Article 12(2) thus provides that the right to leave any country including one‘s
own, and to return to one‘s own country, ―may only be subject to restrictions provided for by law
for the protection of national security, law and order, public health or morality‖. However,
everyone has the right to free association ―provided that he abides by the law‖ (art. 10), without
there being any indication as to the grounds the national law can legitimately invoke to limit that
freedom of association.

In summary, generally, The African Charter on Human and Peoples‘ Rights is specific in that
it protects not only rights of individual human beings but also rights of peoples. The Charter also
emphasizes the individual‘s duties towards certain groups and other individuals. While some
provisions of the African Charter allow for limitations to be imposed on the exercise of the rights
guaranteed, no derogations are ever allowed from the obligations incurred under this treaty

63
ACHPR, Commission Nationale des Droits de l‘Homme et des Libertés v. Chad, No, 74/92, decision taken at the
18th ordinary session, October, 1995, para. 21; for the text see the following web site:
http://www1.umn.edu/humanrts/africa/comcases/74-92.htm

45
  The human rights implementation mechanism under the African Charter

The African Commission and the African Court are the two mechanisms used to implement
human rights in Africa under the Charter.

 The African Commission on Human and Peoples‟ Rights (ACHPR)

The ACHPR consists of eleven members serving in their individual capacity (art. 31). It has the
twofold function, first, of promoting human and peoples‘ rights, and, second, of protecting these
rights (art. 30), including the right to receive communications both from States and from other
sources. The African Commission on Human and Peoples‘ Rights is, in particular, competent to:
promote human rights by collecting documents, undertaking studies, disseminating information,
making recommendations, formulating rules and principles and cooperating with other
institutions; ensure the protection of human and peoples‘ rights by receiving (a) inter-State
communications; (b) communications other than those of the States parties; and (c) periodic
reports from the States parties.

The Charter allows for inter-State communications: if a State party ―has good reasons to believe
that another State Party to this Charter has violated the provisions‖ thereof, ―it may draw, by
written communication, the attention of that State to the matter‖ (art. 47). The State to which the
communication is addressed has three months from the receipt of the communication to submit a
written explanation. If the matter has not been ―settled to the satisfaction of the two States
involved through bilateral negotiation or by any other peaceful procedure‖, either State can bring
it to the attention of the Commission (art. 48). Notwithstanding these provisions, a State party
can refer the matter directly to the Commission (art. 49). However, the Commission can only
deal with the matter after all domestic remedies have been exhausted in the case, ―unless ... the
procedure of achieving these remedies would be unduly prolonged‖ (art. 50). The States
concerned may be represented before the Commission and submit written and oral statements
(art. 51(2)). The Commission shall prepare a report ―stating the facts and its findings‖, which
shall be sent to the States concerned and to the Assembly of Heads of State and Government (art.
52). In transmitting its report, the Commission may make to the aforesaid Assembly ―such
recommendations as it deems useful‖ (art. 53).

46
Communications from sources other than those of States parties: the Charter does not specify
whether the Commission is competent to deal with individual complaints, as such, but merely
provides that, before each session of the Commission, its Secretary ―shall make a list of the
communications other than those of States Parties ... and transmit them to the members of the
Commission, who shall indicate which communication should be considered by the
Commission‖ (art. 55(1)). However, certain criteria have to be fulfilled before the Commission
can consider the case as provided for in article 56.64

periodic reports: the States parties to the Charter also undertake to submit, every two years, ― a
report on the legislative or other measures taken with a view to giving effect to‖ the terms of the
Charter (art. 62)

 The African Court

The African Court on Human and Peoples‘ Rights is a judicial body that delivers binding
judgments on compliance with the African Charter. Established in 2004 and located in Arusha,
Tanzania, the court hears cases from the 26 African Union (AU) member states that have ratified
the Protocol establishing the Court. In 2006, the first eleven judges of the Court were elected and
sworn in. Each judge serves a six-year term and can be re-elected once. All judges, except the
President of the Court, serve on a part-time basis. Article 3 of the Protocol extends jurisdiction to
―all cases and disputes submitted to it concerning the interpretation and application of the
Charter‖, the Protocol and other human rights instruments that states have ratified. In addition,
Article 4 gives the Court jurisdiction to issue advisory opinions on ―any legal matter relating to
the Charter or other relevant human rights instruments, provided that the subject matter of the
opinion is not related to a matter being examined by the Commission.‖

64
(1) the communication must indicate the author; (2) it must be compatible both with the Charter of the OAU and
with the African Charter on Human and Peoples‘ Rights; (3) it must not be written ―in disparaging or insulting
language‖; (4) it must not be ―based exclusively on news disseminated through the mass media‖; (5) it must be
submitted only after all domestic remedies have been exhausted, ―unless it is obvious that this procedure is unduly
prolonged‖; (6) it must be submitted ―within a reasonable period from the time local remedies are exhausted‖; and,
finally (7) the communications must not ―deal with cases which have been settled by these States involved in
accordance with the principles of the Charter of the United Nations‖, the Charter of the OAU or the African Charter
on Human and Peoples‘ Rights (art. 56).

47
Under Article 56 of the African Charter, the Court must consider a number of factors when
deciding upon the admissibility of a case. This includes determining whether an applicant has
submitted the communication within a reasonable time after the alleged violation/s, and whether
domestic remedies have been exhausted, except in cases where procedures would unduly prolong
a case. The Court is permitted to seek an opinion from the African Commission when deciding
on the admissibility of direct communications submitted by individuals and NGOs.

Applications to the Court may be made by the African Commission or other African
intergovernmental organizations, by States who have lodged (or against who has been lodged) a
complaint at the Commission, and by States whose citizen is a victim of a human rights
violation. Other states that are party to the Court‘s Protocol and have an interest in a case may be
permitted by the Court to join the proceedings. In addition, applications may also be lodged
directly by individuals and by NGOs with Observer Status before the African Commission,
however only against those states who have made a declaration accepting the competence of the
Court to receive applications from these entities under Article 5(3) of the Protocol.

Cases before the Court involve a written phase, and may also include an oral phase of
proceedings at which the parties may make submissions and also present evidence and call
witnesses. Once a case has been heard, the Protocol requires that judges issue a decision within
90 days of completing deliberations. If the Court finds the rights of an applicant have been
violated, it can order remedial measures such as compensation or reparations. Article 27 of the
Protocol also allows the Court to order provisional measures, if a case is of ―extreme gravity and
urgency, and when necessary to avoid irreparable harm.‖

Member States subject to the Court‘s jurisdiction must comply with judgments in any case to
which they are parties, within the time given by the Court. States are also responsible for
guaranteeing execution of the Court‘s judgments. If a State fails to comply, this failure is noted
in the Court‘s report to the Assembly, as required under Article 31 of the Protocol.

48
  The African Charter on the Rights and Welfare of the Child, 1990

The African Charter on the Rights and Welfare of the Child 65 (ACRWC) was adopted in 1990,
and entered into force on 29 November 1999. The Charter spells out a long list of rights of the
child and establishes an African Committee of Experts on the Rights and Welfare of the Child.

The States parties ―shall recognize the rights, freedoms and duties enshrined in [the] Charter and
shall undertake to take the necessary steps, in accordance with their constitutional processes and
with the provisions of the ... Charter, to adopt such legislative or other measures as may be
necessary to give effect to the provisions‖ thereof (art. 1(1)). It is noteworthy that ―any custom,
tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations
contained in the ... Charter shall to the extent of such inconsistency be discouraged‖ (art. 1(3))

For the purposes of the African Charter on the Rights and Welfare of the Child, a child means
every human being below the age of 18 (art. 2), and, in all actions concerning the child
undertaken by any person or authority, the best interests of the child shall be the primary
consideration (art. 4(1)). The Charter further guarantees a wide range of rights and principles.66

 The child‟s duties

According to article 31 of the Charter, ―every child shall have responsibilities towards his family
and society, the State and other legally recognized communities and the international
community‖. Such responsibilities include the duty to work for the cohesion of the family, to
serve the national community, to preserve and strengthen social and national solidarity and to
contribute to the promotion of African unity

 The implementation mechanism

An African Committee of Experts on the Rights and Welfare of the Child was established within
the AU in order to promote and protect the rights and welfare of the child (art. 32). It consists of
eleven independent and impartial members serving in their individual capacity (art. 33). The

65
6OAU doc. CAB/LEG/24.9/49 (1990)
66
Read Article 3 to 30 of the ACRWC.

49
Committee further interprets the Charter and monitors the implementation and ensure protection
of the rights concerned (art. 42).

The implementation mechanism consists of (a) a reporting procedure, and (b) a complaints
procedure. Every State party is required to submit reports every 3 years on the measures it has
adopted to give effect to the provisions of the Charter. the Committee may receive
communications from any person, group or non-governmental organization (NGO) recognized
either by the AU, a Member State or the United Nations relating to any matter covered by the
Charter (art. 44). The Committee investigates any matter falling within the ambit of the Charter
and submits regular reports on its activities to the Ordinary Session of the Assembly of Heads of
State and Government every two years (art. 45).

 Protocol to the African Charter on the Rights of Women in Africa, 2003

After many years of activism by human rights groups in Africa, a document knows as a Protocol
on the Rights of Women in Africa came to life in 2003. According to Michelo Hansungule67,
this Protocol attempts to reactivate and supplement the aspirations of the African Charter to
committing itself to women‘s equality by including rights that were not included in the Charter
and ensure that states/governments honor their obligation to respect the rights of women. It is
worth to mention that out of the sixty two (62) Articles in the African Charter only Article 18 68
specifically mentions about protection of women‘s rights and equality. This shows how
insufficient the Charter is when it comes to making reference to the protection of women in
Africa; hence the importance of the Protocol on the Rights of Women in Africa that entirely
elaborates on Women cannot be understated. The Protocol is the symbol of the efforts the AU
has made in promoting women‘s rights in our region with some of the most radical proposals
specifically to address women‘s oppression in marriage, family, unequal property and ownership
patterns, unfair inheritance practices, and many more69

67
MicheloHansungule(2004). TOWARDS A MORE EFFECTIVE AFRICAN SYSTEM OF HUMAN
RIGHTS:―ENTEBBE PROPOSALS‖. A paper presented at the First International Conference on: The Application
of the Death Penalty in Commonwealth Africa on 10th to 11th May 2004 at Entebbe, Uganda.
68
African Charter on Human and People‘s Rights 1981
69
MicheloHansungule (2004).

50
The birth of the additional women‘s protocol in 2003 greatly signified the appreciation of
women‘s rights in the region70. The major aim of the Protocol was to offer protection to women
and provide this protection in a broad and comprehensive manner in the bid to end all forms of
discrimination against women in the continent.

It was after realization by the African Union about the marginalization of women did the idea to
develop the document. Therefore, a comprehensive body of rules was necessary to ensure that all
forms of discrimination against women in all spheres of life such as social, economic, political,
and legal was eradicated. The Protocol in 2003 was applauded internationally by many African
States and other stakeholders for providing for the rights which other international instruments
do not provide71. For example, the Protocol is the first international human rights document to
address and guarantee the right of women to abortion, harmful practices (such as female
circumcision) and HIV services72. The Protocol guarantees extensive rights to African women
and girls and includes progressive provisions on:

 Harmful traditional practices, eg child marriage and female genital mutilation (FGM)
 Reproductive health and rights
 Roles in political processes
 Economic empowerment
 Ending violence against women

The Women‘s Protocol is inspired by a recognised need to compensate for the inadequate
protection afforded to women by the African Charter on Human and Peoples‘ Rights. While the
African Charter guarantees non-discrimination on the basis of sex, equality before the law, and
the elimination of discrimination against women, it does not articulate specific violations of
women‘s rights which result from discrimination. This Protocol is comprehensive with its
inclusion of civil and political rights, economic, social and cultural rights, group rights and
health and reproductive rights. Provisions address, among other things, violence against women,
harmful traditional practices, child marriage, polygamy, inheritance, economic empowerment,

70
Vanderbilt Journal of Transnational Law [Vol. 42: P.951
71
Vanderbilt Journal of Transnational Law [Vol. 42: P.952
72
Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa,2003 Art (14)

51
women‘s political participation, education, health and women in armed conflict.

The Protocol states the obligation of Parties to combat and eliminate all forms of discrimination
against, require Parties to undertake certain measures to guarantee (equal) rights to women, and
affirm rights of women, among them, the right to an equitable share in the inheritance of the
property of her husband, the right to live in a healthy and sustainable environment and the right
to fully enjoy their right to sustainable development. They shall also ensure that women have the
right to nutritious and adequate food. States Parties shall take all appropriate measures to, among
other things –

a) provide women with access to clean drinking water, sources of domestic fuel, land, and the
means of producing nutritious food; b) establish adequate systems of supply and storage to
ensure food security; c) ensure greater participation of women in the planning, management and
preservation of the environment and the sustainable use of natural resources at all levels; d)
protect and enable the development of women‘s indigenous knowledge systems; e) regulate the
management, processing, storage and disposal of domestic waste and ensure that proper
standards are followed for the storage, transportation and disposal of toxic waste.

As to governance, States Parties shall take all appropriate measures to:

a) introduce the gender perspective in the national development planning procedures;
b) ensure participation of women at all levels in the conceptualisation, decision-making,
implementation and evaluation of development policies and programmes;
c) c) promote women‘s access to and control over productive resources such as land and
guarantee their right to property;
d) d) promote women‘s access to credit, training, skills development and extension services
at rural and urban levels in order to provide women with a higher quality of life and
reduce the level of poverty among women;
e) e) take into account indicators of human development specifically relating to women in
the elaboration of development policies and programmes; and

52
 f) f) ensure that the negative effects of globalisation and any adverse effects of the
implementation of trade and economic policies and programmes are reduced to the
minimum for women.

5.4. The Concept of „Duties‟ in an African Human Rights Concept

Mumba Malila, defines the term duty as something that a person is legally bound to do due to
social, legal or family obligations73. The imposition of duties in the African Children‘s Charter
and the African Charter is one of the unique features which differentiate these two documents
from other international human rights instruments. This concept of duties is derived from the
concept of communitarianism which emphasizes teamwork or group work an element embodied
in any contemporary or traditional African society because African culture holds an individual to
be part the community and expects that individual to fulfils certain obligations rather than just
focus on promotion and protection of rights, hence the concept of duties in both the African
Charter and the African Children‘s Charter74.

There is a general consensus in the African society and perception that human rights should also
include duties and responsibilities. This gives an impression that each and every person be it a
child or an adult owe the community or society in general some duties75. In as much as a person
wants to enjoy his/her rights one should bear in mind that those rights do not come in the vacuum
but rather come along with corresponding duties.

The African Charter on the Rights and Welfare of a Child 1990 (African Children‘s Charter)
places a wide range of duties on children specifically under Article 31. The inclusion of duties
and responsibilities in this section entails that children have a purposeful role to play in society,
family cycle, and the country at large so that they grow into responsible citizens76. These duties
are imposed on children by taking into consideration age and capability of each particular child.

73
Mumba Malila (2017) LLD Thesis: The Place of Individual Duties in International Human Rights Law:
Perspectives from the Human Rights System. University of Pretoria. P. 147
74
J Sloth-Nielsen and BD Mezmur .Journal of African Law, 52, 2, (2008). A Dutiful Child: The Implications of
Article 31 of the African Children's Charter. P164
75
OsinfukeEkundayo, (2015).International Journal of Humanities and Social Science.Vol. 5. No. 7 (1)p.154
76
RamphalMxolisiSillah and Tawanda William Chibanda.(2013). IOSR Journal Of Humanities And Social Science
(IOSR-JHSS). Volume 11, Issue 2 (May. - Jun. 2013), p.51

53
Equally the African Charter on Human and peoples‘ Right 1981 (African Charter) provides a
host of positive and negative duties which an individual has. Article 29 lists duties that an
individual owes to the state, community, and even to the fellow man. The Children‘s Charter and
the AU Charter contain a similar provision which enumerates the duties of a child and individual
to the family, society, nation, and region at large and both emphasizes teamwork or group work
an element embodied in any contemporary or traditional African society by virtue of African
culture which holds that an individual is part of the community with obligations to fulfil 77.The
imposition of these duties signifies that an individual‘s rights are not absolute but rather may be
limited by the duties of individuals.

5.5. African Human rights in case law (African Court and African Commission
decisions)

As a human rights student, it is expected that you familiarize yourself with various cases that
have been handled by the commission and the African Court and how such cases have been
interpreted in the African context. It is important that you research and read the cases including;

 Katangese Peoples‘ Congress v Zaire (2000) AHRLR 72 (ACHPR 1995)

 Zimbabwe lawyers for Human Rights on 2000 Parliamentary Election Petitions & the
Government of Zimbabwe, ACHPR Case Communication No 293/04
 Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000)
 Rencontre Africaine pour la Defense des Droits de l'Homme v. Zambia, African
Commission on Human and Peoples' Rights, Comm. No. 71/92 (1996).
 African Commission on Human and Peoples‘ Rights v. Republic of Kenya, Judgment,
Application No. 006/212
 Commission Nationale des Droits de l‘Homme et des Liberte´s v Chad (2000) AHRLR
66 (ACHPR 1995)
 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria
(2001) AHRLR 60 (ACHPR 2001)
 Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v Kenya- 276 / 2003

77
Article 31 of the African Children‘s Charter 2003 and Article 29 of the African Charter 1990

54
  Zimbabwe Lawyers for Human Rights, Human Rights Trust of Southern Africa vs. The
Government of Zimbabwe Forced Evictions Hopley- Porta Farm and Hatcliffe
Communities ACHPR Case COMMUNICATION No. 314/05
 Amnesty International v. Zambia, Communication No. 212/98
 Mouvement des Re´fugie´s Mauritaniens au Se´ne´gal v Senegal (2000) AHRLR 287
(ACHPR 1997)
 Legal Resources Foundation v Zambia, Communication No. 211/98 :
 Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 1998)
 Constitutional Rights Project and Another v Nigeria (2000) AHRLR 235 (ACHPR 1999)
 Kalenga v Zambia (2000) AHRLR 321 (ACHPR 1994)
 Courson v Zimbabwe (2000) AHRLR 335 (ACHPR 1995)
 Organisation Mondiale Contre la Torture and Others v Rwanda (2000) AHRLR 282
(ACHPR 1996)

5.6. The Inter-American Human Rights system

The Inter-American Human Rights System consists of the American Convention on Human
Rights, 196978 and its Protocols of 1988 and 1990. The American Convention on Human Rights,
1969 entered into force on 18 July 1978.

The Convention reinforced the Inter-American Commission on Human Rights, which since 1960
had existed as ―an autonomous entity of the Organization of American States‖. It became a
treaty-based organ which, together with the Inter-American Court of Human Rights, ―shall have
competence with respect to matters relating to the fulfillment of the commitments made by the
States Parties‖ to the Convention (art. 33).

In 1988, the General Assembly of the Organization of American States (OAS) further adopted
the Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, also called the Protocol of San Salvador.79 This Protocol develops the
provisions of article 26 of the Convention whereby the States parties in general terms ―undertake
78
OAS Treaty Series, No. 36.
79
OAS Treaty Series, No. 69.

55
to adopt measures, both internally and through international co-operation, ... with a view to
achieving progressively, by legislation or other appropriate means, the full realization of the
rights implicit in the economic, social, educational, scientific, and cultural standards set forth in
the Charter of the Organization of American States as amended by the Protocol of Buenos
Aires‖. This Protocol entered into force on 16 November 1999.

Lastly, in 1990 the General Assembly also adopted the Protocol to the American
Convention on Human Rights to Abolish the Death Penalty, which entered into force on 28
August 1991.80 The States parties to this Protocol ―shall not apply the death penalty in their
territory to any person subject to their jurisdiction‖ (art. 1). No reservations may be made to this
Protocol, although States parties may declare at the time of ratification or accession ―that they
reserve the right to apply the death penalty in wartime in accordance with international law, for
extremely serious crimes of a military nature‖ (art. 2(1)).

As to the issue of prevention, the Court specified that

―the State has a legal duty to take reasonable steps to prevent human rights violations and to use
the means at its disposal to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure
the victim adequate compensation‖.81

This legal duty to prevent human rights violations would moreover include ―all those means of a
legal, political, administrative and cultural nature that promote the protection of human rights
and ensure that any violations are considered and treated as illegal acts, which, as such, may lead
to the punishment of those responsible and the obligation to indemnify the victims for damages.

the civil and political rights guaranteed by the Convention are outlined in article 3 to 25 and
includes right to a fair trial, privacy, freedom of assembly etc. – Apart from recognizing these
civil and political rights, the American Convention on Human Rights also contains an article
whereby the States parties in general terms ―undertake to adopt measures, both internally and
through international co-operation, ... with a view to achieving progressively, by legislation or
other appropriate means, the full realization of the rights implicit in the economic, social,

80
OAS Treaty Series, No. 73.
81
A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, para. 174, p 155.

56
educational, scientific, and cultural standards set forth in the Charter of the Organization of
American States as amended by the Protocol of Buenos Aires‖ (art. 26).

However, with the entry into force of the Additional Protocol to the Convention in the Area of
Economic, Social and Cultural Rights, these rights have been given a more detailed legal
definition, although the ―full observance‖ thereof is still to be achieved ―progressively‖ (art. 1).
The Additional Protocol recognizes economic, social and cultural rights in articles 3 to 18.

The exercise of the following rights may be subjected to limitations if necessary for specifically
enumerated purposes: the right to manifest one‘s religion and beliefs (art. 12(3); the right to
freedom of thought and expression (art. 13(2); the right to the freedoms of assembly and of
association (arts. 15, 16(2) and (3); and the right to freedom of movement and residence,
including the right to leave any country, including one‘s own (art. 22(3).

Grounds which may justify limitations of rights are, among others, the protection of public
safety, health, morals, (public) order, national security or the rights and freedoms of others (the
legitimate reasons vary on the depending right protected justify limitations on the exercise of. To
be lawful under the American Convention on Human Rights, limitations on the exercise of rights
must comply with:

- the principle of legality, in that the restrictive measures must be based in law;
- the principle of a democratic society, in that the measure imposed must be judged by
reference to the legitimate needs of democratic societies and institutions; and
- the principle of necessity/proportionality, in that the interference with the exercise of the
individual‘s right must be necessary in a democratic society for one or more of the
specified purposes.

With some modifications as compared to article 4 of the International Covenant on Civil and
Political Rights, article 27 of the American Convention on Human Rights also foresees the
possibility for the States parties to derogate from the obligations incurred under the Convention.
When derogating from their obligations under article 27 of the American Convention on Human
Rights, States Parties must comply with:

57
 - the condition of exceptional threat; meaning a State party can only resort to derogations
―in time of war, public danger, or other emergency that threatens the independence or
security of a State Party‖ (art. 27(1))
- the condition of non-derogability of certain obligations; article 27(2) of the American
Convention provides a long list of provisions from which no suspension can ever be
made: article 3 (right to juridical personality); article 4 (right to life); article 5 (right to
humane treatment); article 6 (freedom from slavery); article 9 (freedom from ex post
facto laws); article 12 (freedom of conscience and religion); article 17 (rights of the
family); article 18 (right to a name); article 19 (rights of the child); article 20 (right to
nationality); article 23 (right to participate in government).
- the condition of strict necessity: a State party may only ―take measures derogating from
its obligations under the present Convention to the extent and for the period of time
strictly required by the exigencies of the situation‖ (art. 27(1);
- the condition of consistency with other international legal obligations: the measures of
derogation taken by the State party must not be ―inconsistent with its other obligations
under international law‖, such as obligations incurred under other international treaties or
customary international law (art. 27(1);
- the condition of non-discrimination: the measures of derogation must ―not involve
discrimination on the ground of race, colour, sex, language, religion, or social origin‖
(art. 27(1)); and, finally,
- the condition of international notification: in order to avail itself of the right to derogate
under article 27(1), the State party must immediately inform the other States Parties,
through the Secretary-General of the Organization of American States, of the provisions
the application of which it has suspended, the reasons that gave rise to the suspension,
and the date set for the termination‖ thereof.

 The implementation mechanism under the Inter-American human rights system

The inter-American system for the protection of human rights comprises, in the first instance, the
Inter-American Commission on Human Rights and, in the second instance, the Inter-American
Court of Human Rights for those States parties having accepted its jurisdiction. the Inter-
American Commission is composed of seven members elected in their personal capacity (arts. 34

58
and 36(1)) whose main functions are to ―promote respect for and defence of human rights‖ by,
inter alia, (1) developing an awareness of human rights in the Americas; (2) making
recommendations to Governments of the member States, when it considers such action
advisable; (3) preparing such studies and reports as it considers advisable in the performance of
its duties; and, (4) taking action on petitions and other communications pursuant to its authority
under the Convention (art. 41(a), (b), (c) and (f)). The right of individual petition to the
Commission is mandatory under the Convention, according to which ―any person or group of
persons, or any non-governmental entity legally recognized in one or more member States of the
Organization [of American States] may lodge petitions ... containing denunciations or complaints
of violation of this Convention by a State Party‖ (art. 44). On the other hand, inter-State
complaints require a specific declaration whereby the State concerned recognizes the
competence of the Commission to examine communications brought against another State party
having made the same declaration (art. 45(1) and (2).

The admission of an individual petition or inter-State communication submitted to the

Commission is subject to several requirements, such as the exhaustion of domestic remedies rule
(art. 46(1)(a)). The exhaustion of domestic remedies rule is not, however, applicable (a) where
the domestic legislation ―does not afford due process of law for the protection of the right or
rights that have allegedly been violated‖; (b) where the alleged victim has been denied access to
domestic remedies; and (c) where there has been ―unwarranted delay in rendering a final
judgement‖ (art. 46(2).

The Inter-American Court of Human Rights is competent to examine cases submitted to it by the
States parties and the Commission provided that these cases have first been considered by the
Commission (art. 61). ―In cases of extreme gravity and urgency‖, the Court ―shall adopt such
provisional measures as it deems pertinent‖, and, at the request of the Commission, it may in fact
also do this with respect to cases not yet submitted to it (art. 63(2). The Court‘s judgments are
final and the States parties undertake to comply with the terms thereof ―in any case to which they
are parties‖ (arts. 67 and 68(1).

59
 5.7. The European Human Rights system

The European human rights system comprises of the European Convention on Human Rights,
1950, and its Protocols. The European Convention on Human Rights was adopted by the Council
of Europe in 1950, and entered into force on 3 September 1953.82

The European Convention guarantees the civil and political rights in article 2 up to article 14.
The European Convention on Human Rights and its Protocols 1, 4, 6 and 7 provide extensive
protection of the rights and freedoms of the human person at the European level. The High
Contracting Parties ―shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of [the] Convention‖ (art. 1). This means, inter alia, that they also have to
provide everyone whose rights and freedoms guaranteed by the Convention have been violated
with ―an effective remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity‖ (art. 13

Some of the articles of the Convention and its Protocols provide for the possibility to impose
restrictions on the exercise of rights in particular defined circumstances. This is the case with
articles 8 (the right to respect for one‘s private and family life), 9 (the right to freedom of
thought, conscience and religion), 10 (the right to freedom of expression) and 11 (the right to
peaceful assembly and freedom of association) of the Convention. The same holds true with
regard to the right to peaceful enjoyment of one‘s possessions in article 1 of Protocol No. 1 and
the right to freedom of movement and residence in article 2 of Protocol No. 4.

The restrictions on the exercise of these rights must, however, in all circumstances be imposed
―in accordance with the law‖, be ―provided for by law‖ or ―prescribed by law‖; and, with the
exception of article 1 of Protocol No. 1, they must also be ―necessary in a democratic society‖
for the particular purposes specified in the various articles, such as, for instance, in the interests
of public safety, for the protection of public order, health or morals, the prevention of disorder or
crime or the protection of the rights and freedoms of others (the legitimate reasons vary
depending on the right protected).

82
The official name of this treaty is: Convention for the Protection of Human Rights and Fundamental Freedoms,
see European Treaty Series (ETS), no.: 005.

60
 It is clear from the above that the European human rights systems just like the Inter-
American, allows for limitations on the exercise of certain rights protected by the Convention
may be permissible, provided that they comply with the principles of: legality; the legitimate
needs of a democratic society; and necessity/proportionality, in that the measures must be
necessary in a democratic society for one or more of the specified purposes.

Article 15 of the European Convention provides for the possibility of derogations from legal
obligations in exceptional situations. When derogating from their obligations under article 15 of
the European Convention on Human Rights, the High Contracting Parties must comply with:

- the condition of exceptional threat; the condition of non-derogability of certain

obligations
- the condition of strict necessity
- the condition of consistency with other international obligations and
- the condition of international notification.

 Implementation of European Convention on Human Rights

The implementation of the European Convention on Human Rights is monitored by the

European Court of Human Rights. All alleged violations of the rights and freedoms guaranteed
by the Convention and its Protocols are referred directly to the European Court of Human Rights,
which shall ―ensure the observance of the engagements undertaken by the High Contracting
Parties‖ (art. 19). The Court is a permanent and full-time body, sitting in Committees of 3
judges; Chambers of 7 judges; or a Grand Chamber of 17 judges (art. 27(1). The Court is
competent to receive and examine inter-State cases and applications from any person, non-
governmental organization or group of individuals claiming to be the victim of a violation of the
rights guaranteed by the Convention or its Protocols. The Court may not, however, deal with an
application of any kind unless domestic remedies have been exhausted and the application has
been submitted within six months from the date on which the final decision was taken (art. 35(1).

Additionally to the European Convention, The European Social Charter, 1961, and its Protocols
of 1988, 1991 and 1995 aims at securing a number of social and economic rights. As such, the
said Charter and protocols are the natural counterpart to the European Convention on Human

61
Rights which guarantee civil and political rights. The Charter sets up a biennial reporting
procedure and, following the entry into force of the 1995 Additional Protocol, a system of
collective complaints was also created. While the Charter provides the contracting States with a
certain flexibility, they must consider themselves bound by at least 5 of 7 specified core articles,
as well as by an additional 10 articles or 45 numbered paragraphs. The Charter allows for the
limitation of the rights contained therein provided that such limitations are consistent with the
principles of legality, a democratic society and proportionality. States parties may also be
allowed to derogate from their legal obligations under the Charter in times of war, threat of war,
or other public emergency. The measures of derogation taken must comply with the principles of
strict necessity and consistency with the State‘s other international obligations.

The European Social Charter, 1961, provides for a reporting procedure, as well as, on a more
limited scale, for a collective complaints procedure allowing international and national
organizations of employers and trade unions as well as non-governmental organizations to
submit complaints alleging an unsatisfactory application of the Charter (Additional Protocol).

5.8. Unit Summary

This unit has provided some basic information about the rights protected by the major treaties
existing in Africa, the Americas and Europe, and has also provided a general introduction to the
regional monitoring mechanisms. These treaties have contributed to important changes in the
laws of many countries, and, in view of the large number of States having ratified, acceded or
adhered to them. It is hoped that as a student, you will read more on the three regional human
rights system examined in this unit so that you have a deeper understanding of the human rights
provisions in the documents highlighted. This unit should also help you to spot the differences
and similarities among the three regional human rights systems.

5.9. End of unit revision exercise

 Discuss the regional human rights instruments and outline their differences and
similarities.
 Is the concept of ‗duty‘ in the African human rights system reasonable? Discuss.

62
 UNIT SIX

FUNDAMENTAL RIGHTS IN THE ZAMBIAN CONSTITUTION

6.1. Objectives

After studying the unit you should;

 Know about the scope of subject of Human Rights protection in Zambia.

 Be aware about the provisions of Fundamental Rights as enshrined in the Zambian
Constitution
 Appreciate whether the current constitutional human rights regime is adequate in Zambia
 Apply theory to practice
 Able to give well reasoned advice on the provisions of the constitutional bills of rights
and be able to interpret hypothetical and practical human rights issues in the Zambian
context

6.2. Introduction

Human rights are essential for the overall development of individuals. The Constitution of
Zambia makes provisions for basic rights also known as Fundamental Rights for its citizens as
well as for aliens. The rights enshrined in the Constitution also at times are at par with the
International Bill of Rights although not all rights are captured in the constitution a shall be seen
in the course of study of this unit.

6.3. Human Rights in Zambia

Zambia got its independence in the year 1964, almost 30 years after the UDHR was adopted in
1948 and two years later after the adoption of the International Covenant on Civil and Political
Rights. The founding fathers of the Zambian constitution were all aware that Zambia‘s freedom
struggle had taken place in the context of the demand for basic human rights. Yet economic
backwardness of the country would make it impossible to immediately satisfy all the aspirations
of people. So, they adopted a pragmatic approach. They described certain rights as ―fundamental

63
rights‖. It suffices to say that human rights in Zambia have been inspired by the adoption of
various documents notable among them are; Universal Declaration of Human Rights,
International Covenant on Civil and Political rights and the Covenant on Economic, Social and
Cultural Rights83.

Fundamental Rights in Zambia are provided for in Part III of the Constitution of Zambia Bill of
Rights which recognizes certain civil and political rights. Economic and Social rights are
currently not recognized provisions in the Constitutional Bill of Rights. These rights have been
called ―Fundamental Rights‖. The expression ―Fundamental‖ shows that these rights are basic
rights. Recognizing rights as ‗Fundamental‘ shows that those rights are great and basic rights
which are recognized and guaranteed as the natural right inherent in the status of a citizen of a
free country. Consequently, fundamental rights in the Zambian Constitution are inviolable in the
sense that no law, ordinance, custom, usage or administrative order can abridge or take away a
fundamental right. A law which violates any of the fundamental right is void as provided for in
article 1 (3) of the republican Constitution. Therefore, the rights provided in the Bill of Rights
are binding on the legislature as well as the Executive. As a result, a fundamental right cannot be
taken away even by a constitution amendment if it forms the basic structure of the Constitution.

Fundamental rights are enshrined in Articles 18-28 Part III of the Constitution which guarantees
to all every person freedoms such as:

 Protection of right to life - Article 11(a), Article 12

 Protection of right to personal liberty - Article13
 Protection from slavery - Article 14
 Protection from inhuman or degrading treatment- Article 15
 Protection from deprivation of property - Article16
 Right to a fair hearing - Article 18(1)
 Protection against arbitrary search or entry- Article 17(1)
 Protection of freedom of conscience and religion84- Article 19

83
A detailed discussion of each of these documents is provided for in Unit 4.
84
See the case of Feliya Kachasu v Attorney General (1972) ZR

64
Article 11 provides a blanket non-discrimination clause that guarantees everyone the enjoyment
of fundamental rights and freedoms regardless of ―race, place of origin, political opinions,
colour, creed, sex or marital status‖ (emphasis added). Article 23 of the Constitution further
guarantees that, except for certain limitations, ―A law shall not make any provision that is
discriminatory either of itself or in its effect.‖

6.4. Limitation Clauses

Limitation clauses are restrictions or limits to the enjoyment of certain rights. It is clear that
rights are not absolute as society would not be able to function. For example, if the right to
freedom of movement were absolute, society would not be able to imprison convicted criminals.
Similarly, if the right to freedom of expression were absolute, the state would not be able to
protect its citizens from hate speech or false defamatory statements made with reckless disregard
for the truth. Clearly, governments require the ability to limit rights in order to serve important
societal interests; however, owing to the supremacy of the constitution this can only be done in
accordance with the constitution. It is clear that rights can be limited on two main bases: to
protect the rights and freedoms of other individuals; and to protect the public interest.

Article 11 of the Zambian constitution declares that every person in Zambia has been and shall
continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the
right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status,
but subject to the limitations. Clearly, the rights in the constitution are limited or they are not
absolute. This shows the Constitution of Zambia makes provision for legal limitations on the
exercise and protection of rights contained in Part III of the Constitution of Zambia, ‗Protection
of fundamental human rights and freedoms of the individual‘.

Article 11 is evidence that the various rights provided for in Part III are subject to such
limitations designed to ensure that the enjoyment of the said rights and freedoms by any
individual does not prejudice the rights and freedoms of others or the public interest. In Feliya
Kachasu v Attorney-General85 the Court had an opportunity to consider and apply limitation

85
(1967) Z.R. 145 (H.C.).

65
clauses regarding freedom of conscience. This case involved a young school going child Feliya
who was expelled from school for refusing to sing the national anthem. The validity of
86
regulations requiring school children to sing the national anthem and salute the national flag
were challenged on grounds of unconstitutionality, that the applicant, a Jehovah's Witness, was
denied the right to enjoyment of conscience and religion. The regulation under the Education
Act, which appeared to hinder that enjoyment, were upheld on the grounds that applicant had not
established that the regulations in question had gone beyond what was reasonably required in the
interests of public security or public order. The Court was of the view that in order to ascertain
national security, it was essential to have national unity.

In the case of M'membe and Mwape v The People, M'membe and Others v The People87, the
appellants were facing an offense of defamation of the president. The Supreme Judge as he was
then Ngulube CJ held that the offence was reasonably required in the interests of public safety,
and was reasonably justifiable in a democratic society:

―...rights and freedoms are subject to limitations designed to ensure that the enjoyment of
the said rights and freedom by any individual does not prejudice the rights and freedom
of others or the public interest.‖

Commenting on the above case on deflation of the president, Hamalengwa is of the view that
although the defamation of the President may be Constitutional, it would still seem to fall short
of the Constitutionality test in that no sufficient safeguards are in place to prevent its abuse88.

6.5. Enforcement of the bill of Rights

The Zambian Judiciary consists of the superior courts and the following courts: (a) subordinate
courts; (b) small claims courts and (c) local courts89. The courts in Zambia take into account
principles of justice when interpreting the constitutional rights 90 . The High Court of Zambia is
the guarantor of the rights according to the Constitution as provided for in article 28. Any person

86
It is the author‘s view that the Feliya Kachasu case would be decided differently if it was to be brought before the
court today because currently, the interpretation of human rights in Zambia has broadened especially taking into
consideration international developments in the area of human rights which Zambia is a party to.
87
SCZ Judgment of 1996.
88
Munyonzwe Hamalengwa (2022). Commentaries on the Laws of Zambia: Lusaka.
89
Article 120 (1), Constitution of Zambia, 2016.
90
Ibid, Article 118.

66
whose rights have been or are about to be infringed upon can apply to the High Court for redress.
The High Court will hear the matter and make a determination. The courts has discretion to make
various orders such as mandamus, certiorari, declaratory orders, injunctive remedies and any
other orders as the Court may deem necessary. Appeal lies to the Supreme Court.

Zambian courts have on many occasions adjudicated on the bill of rights. A few examples of
such cases include;

Christine Mulundika and 7 others v the People91, which interprets the provisions on protection
of freedom of assembly and association as provided for in Article 21 of the Constitution. The
Mulundika case challenged the constitutionality of the Public Order Act Cap 105 of the Laws of
Zambia.

Sarah Longwe v Attorney General 1984, was based was article 11 of the Constitution which
provides for non--discrimination. The applicant Sarah Longwe challenged the policy then at
Intercontinental Hotel where women were not allowed to enter the hotel bar unaccompanied by a
man. The Court held such policy as discriminatory.

In Mwaba v Attorney-General92 the plaintiff claimed damages for assault, intimidation, trespass
to person and false imprisonment by servants of the Government of the Republic of Zambia. He
claimed that on or about the 3rd November, 1972, he was unlawfully removed from his place of
detention by servants of the Government and taken to and wrongfully imprisoned in an unknown
place until the 8th November, 1972. In the course of his imprisonment the plaintiff alleged that
he was imprisoned in a filthy cell of minute proportions with little or no light or ventilation,
forced to enter and remain in the nude, threatened with violence, subjected to torture and
particularly to electric shock, interrogated in a dark room with bright lights directed into his
eyes, punched and slapped, threatened with his life, given little and insufficient food and water,
and forced to remain awake for long periods of time. As a result of these acts of assault and
intimidation by the servants of the Government the plaintiff claimed that he suffered pain and
injuries and suffered loss and damage. Accordingly, he claimed damages… It was held (among
other things) that the plaintiff was subjected to torture, inhuman and degrading treatment

91
[1996] 2 LRC 175.
92
(1974) Z.R. 177 (H.C.).

67
contrary to the protection which he enjoyed under the Constitution. Hence he is entitled to
exemplary damages.

93
In Chipenzi and Others v The People , the High Court struck down Section 67 of the Penal
Code which provided for the offence of publication of false news with intent to cause fear and
alarm to the public. The Court found the provision to have been inconsistent with Article 20 of
the Constitution which provides for freedom of expression.

Most recently, an NGO Chapter One Foundation petitioned the High Court when ZICTA shut
off internet during the August 2021 general elections and the court ruled that such an act
breached the constitutional provision on the right to freedom of expression and ordered the State
to restore internet services in the country. Further, in the case of Chapter One Foundation v
Zambia Information Telecommunication Technology Authority, on 21st March 2022,
Chapter One Foundation and ZICTA entered into a consent judgment in which ZICTA has
agreed not to act outside its legal authority and/or control to interrupt the flow or access to the
internet going forward. This is the first case of its kind in Zambia and an enormous victory for
internet freedom and freedom of expression in the country.

6.6. Human rights institutional protection mechanisms in Zambia

Zambia has various institutions with a role to play in the promotion and protection of human
rights. Some of these institutions include the Courts, Parliament, and Office of the Public
Protector, Zambia police, Police Public Complaints Commission as well as the Human Rights
Commission among others.

 Human Rights Commission

The Human Rights Commission is an independent constitutional body established under Article
125 of the Constitution of Zambia. Its autonomy is guaranteed by Article 125(2) of the
Constitution and Section 3 of the Human Rights Commission Act No. 39 of 1996. The
Commission has a broad mandate to promote and protect human rights as outlined in its
constitutive Act. The mandate of the Human Rights Commission is to promote and protect

93
(2014) HPR/03.

68
human rights for all people in Zambia. The functions of the Commission are basically
investigative, educative and advisory.

In order to fulfill its broad mandate, the Commission is empowered by Sections 9 and 10 of the
Human Rights Commission Act No. 39 of 1996 to:

 investigate human rights violations

 investigate any mal administration of justice
 propose effective measures to prevent human rights abuses
 visit prisons and other places of detention and related facilities with a view to assessing
and inspecting conditions of the persons held in such places and make recommendations
to redress existing problems
 establish a continuing program of research, education, information and rehabilitation of
victims of
 human rights abuse to enhance the respect for and protection of human rights
 do all such things as are incidental or conducive to the attainment of the functions of the
Commission

The Zambia Police Service is one of the key stakeholders of the Human Rights Commission in
the promotion and protection of human rights.

Police officers occupy a position of great importance in the preservation of the basic human
rights guaranteed by the Constitution of Zambia and must therefore, be effective instruments
through which the rule of law is upheld. In an ideal situation, they should ensure that any
incident of human rights abuse is effectively prevented and not themselves to perpetuate these
abuses. In addition, police officers must always exercise care and caution in the performance of
their functions. The constitution of Zambia provides that any person charged with a criminal
offence shall be presumed to be innocent until he is proved or has pleaded guilty. The
Constitution further stresses that a criminal defendant shall be afforded a fair hearing within a
reasonable time by an independent and impartial court established by law. Therefore, to all intent
and purposes, treatment must reflect just this.

69
  Office of the Public Protector

The Office of the Public Protector is established under the Public Protector Act No. 15 of 2016
and primarily by Article 243 (1) of the constitution of Zambia amendment Act No. 2 of 2016. It
replaced the Office of Investigator General. Conventionally the institution deals with complaints
from the public on administrative injustice and maladministration and seeks to protect rights of
an individual in his/her quest to receive a public service that is just and fair. The institution also
seeks to promote practices of good governance in public institutions in the delivery of public
services to the general public. The OPP receives complaints on issues such as; prolonged delay
in the delivery of services, rudeness by public service employees in the conduct of their duties,
carelessness or negligence in service delivery, unfair treatment and discrimination based on an
individual‘s social or economic status in society, sex or physical and mental ability.

The OPP serves as an accountability mechanism by receiving complaints from the people against
the government on any acts of maladministration. Maladministration means an action taken or
omitted to be taken, or a decision made or omitted to be made, by a State institution in the
performance of an administrative function, which is unfair, unreasonable, illegal or against the
rules of natural justice. Any member of the public can lodge a complaint free of charge. Reports
on the investigations done are submitted to Parliament.

 Police Public Complaints Commission

The police service performs integral functions in any society. In Zambia, the police service is
mandated by the law to protect life and property, preserve peace and maintain law and order,
ensure the security of the people, detect and prevent crime and uphold the Bill of Rights among
other tasks. Failure by the police to handle their duties professionally may have negative impact
on the rights of citizens. For example, a police officer is not supposed to force a confession from
a suspect and a suspect should be accorded minimum standards of fairness. Many times, the
police fail to adhere to operative guidelines and this is the reason why the Police Public
Complaints Commission (PPCC) was created to investigate into police misconduct.

The PPCC is an independent civilian police watchdog or oversight institution mandated to

observe and ensure that those within the Police structure adhere to the law they wish to enforce
by investigating all complaints against police among others. The police and public Complaints

70
Commission (PPCC) derive its mandate from the Police Public Complaints Commission Act No.
18 of 2016. The Commission is expected to be an independent body tasked to perform checks
and balances on conduct of Police officers. In its simplest form it is expected to play the role of
―Police‖ to the Zambia Police Service Commission. The preamble of the Police Public
Complaint Act states

―An Act to provide for the membership, functions, operations and financial management
of the Police- Public Complaints Commission; provide a procedure for the initiation and
investigation of complaints against police actions; and provide for matters connected
with, or incidental to, the foregoing.

The Police Public Complaints Commission investigate police action, undertake inquiries into, or
audit of, any aspect of police action; ensure transparency and accountability by police officers in
the handling of criminal matters, in accordance with the principles of the Constitution; take such
steps and measures as are necessary for the efficient and effective handling of investigations.

6.7. Unit summary

Fundamental rights have been bestowed to the citizens of Zambia by the founding fathers of the
Zambian Constitution. Fundamental rights also known as the basic rights are recognized and
guaranteed as the natural rights. Several rights in the international Covenant on Civil and
Political Rights are similar to some of the fundamental rights provided for in Part III of the
Zambian Constitution. The rights under part III come with limitations meant to protect public
interest and public morals. Various institutions such as the Human rights Commission, Police
Public Complaints Authority and the Office of the public Protector are created with the mandate
to promote, protect, investigate and make recommendations towards human rights issues.

6.8. Unit 6 revision exercise

1. List the categories of rights guaranteed by the Zambian Bill of Rights.

2. Is the Human Rights Commission, OPP and PPCC effective? Discuss.
3. Is there any difference between limitation clauses and derogations? Explain.

71
 UNIT SEVEN

JUSTICIABILITY OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

7.1. Objectives

At the end of this unit, a student is expected to;

 Understand the concept of justiciability of human rights in the context of economic,

social and cultural rights
 Have knowledge of why all sets of rights are required to be justiciable
 Apply theory to practice

7.2. Introduction

The debate on the question of whether the duty bearer, the State can be held liable at law by the
right holder, the citizen for violation of a particular right has been in public domain for quite
some time now. Regardless of that, it is a widely accepted position that the ratification of
international human rights treaties by state parties can only be meaningful only when the rights
guaranteed in relevant treaties have an effect upon domestic or municipal protection of human
rights, and that effective remedies for violations of the protected rights are available and
accessible, at the domestic level. The legal issue then would be to make a determination on the
influence of the ICESCR on the constitutional protection of ESC rights because as things stand,
this appears to be the most effective way of ensuring the protecting human rights in Africa in
general and in Zambia in particular.

7.3. The Concept of Justiciability

According to Ariel L. Bendor, Justiciability deals with the boundaries of law and adjudication.
Its concern is with the question of which issues are susceptible to being the subject of legal
norms or of adjudication by a court of law94. In other words, a right is justiciable if its violation

94
Ariel L. Bendor (1997). ARE THERE ANY LIMITS TO JUSTICIABILITY? The Jurisprudential and
Constitutional Controversy in Light of the Isreali and American Experience. Vol. 7: 2. IND. INT‘L & Comp. L.
REV, p312.

72
can be brought before the courts of law for litigation or adjudication. On the other hand, a right is
non-justiciable if it cannot be a subject of litigation.

It is common knowledge that, when the Universal Declaration of Human Rights was
transformed into legally binding norms, the decision was ultimately taken to enshrine civil and
political rights and social, economic and cultural rights in separate conventions. Kristin Henrard
argues that the key reason for this decision is because of the nature of these two categories of
rights and the concomitant state obligations which are fundamentally different95. Firstly, civil
and political rights were mere negative obligations of abstention for states, while economic,
social and cultural rights created positive obligations. Secondly- and consequently- the state
obligations in relation to civil and political rights were immediate, whereas the positive
obligations relating to economic, social and cultural rights were merely progressive. As a result,
civil and political rights were justiciable, while economic, social and cultural rights were not
because of their indeterminable nature96.

Globally, the thinking on the issue of justiciability of all human rights has developed over-time
especially, since 1993 World Conference on Human Rights which shifted the recognition that all
human rights are interdependent and indivisible and therefore their core characteristics cannot be
that different97. At regional level, the African Charter on Human and People‘s Rights
(hereinafter, African Charter), is generally regarded as a codification of both civil-political and
social-economic rights, reflecting their indivisibility, interdependence and interrelatedness 98. The
most remarkable thing is that, in the African Charter, the enforcement mechanisms for civil-
political rights and the (quasi) judicial procedures are equally applicable to and valid for the
social-economic rights.

7.5. Constitutional Status of Economic Social and Cultural Rights in Zambia

Zambia is a signatory to the Universal Declaration of Human Rights (1948) and the African
Charter (1981). Zambia has equally endorsed various conventions such as the ESCR. All

95
Kristin Henrard (2009). Introduction: The Justification of ESC Rights and the Interdependence of all Fundamental
Rights. Erasmus Law Review, Volume 02, Issue 04 (2009), P 373.
96
Supra note 43., pp 373-374.
97
The Vienna Declaration and Program of Action adopted by the World Conference on Human Rights, 23 June
1999, UN Doc. A/Conf.157/23, Part 1, para. 5.
98
Preamble of the African Charter, para. 5.

73
member state to these conventions have pledged to create conditions where everyone may enjoy
his or her Economic, Social and Cultural Rights (ESCR) in the same way that civil and political
rights are enjoyed99.

In part III, ―Protection of Fundamental Rights and Freedoms of the Individual‖, the Bill of rights
of the current Zambian Constitution100, ESC rights are not explicitly provided for. Prior to the
enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016, economic, social and
cultural rights were only provided for under Part IX as part of Directive Principles of State
Policy. The Directive Principles of State Policy served as a guide for the Executive, Legislature
and the Judiciary in the development of national policies; implementation of national policies;
making and enactment of laws; and application of the Constitution and any other law101.

The enactment of the amended Constitution of Zambia 2016 entails that the Constitution is now
silent on economic, social and cultural rights, hence the lack of clarity regarding their legal status
in Zambia102. The failure of the National Referendum in 2016 to pass the threshold of 50 plus
one percent to expand the Bill of Rights as proposed meant that Zambia was left with Part III Bill
of Rights103 which does not provide for ESC rights. The Bill of Rights only provides for the
protection of civil and political rights104. In other words, economic, social and cultural rights
which Zambia has committed to uphold by acceding to the International Covenant on Economic,
Social and Cultural Rights (ICESCR) are absent.

7.6. Enforcement of Economic Social and Cultural Rights under Zambia‟s Judicial System

Generally, Zambia‘s judicial system has been very reluctant to venture out and adjudicate on
cases relating to allegations of state human right violations concerning second generation rights.
However, recently, a trend has been set to narrow the margin of appreciation in Zambia in
relation to social-economic rights. For instance, in the recent decision of the Supreme Court in

99
UDHR 1948, article 22.
100
Cap 1 of the Laws of Zambia.
101
Simon Mwale (2004). Zambia‘s Economic, Social and Cultural Rights: why should they be in the Constitution?
Social Conditions Research Project: Jesuit Center for Theoretical Reflection, P 4.
102
Report of the Special Rapporteur on the Rights of Persons with Disabilities on her visit to Zambia: Human Rights
Council Thirty-fourth session (2017). P 5.
103
Ibid, p 5.
104
Article 11, Constitution of Zambia.

74
the case of George Peter Mwanza and Melvin Beene vs The Attorney General 105, a landmark
decision was delivered changing the human rights jurisprudence in the context of protecting and
preserving the fundamental human rights of prisoners. The brief facts of this case are that
appellants were HIV positive and were both in custody at the Lusaka Central Prison. They
petitioned the High Court contending breach of their rights to life and protection from inhuman
treatment contrary to the Republican Constitution. The argument of the appellants was that the
State‘s failure to consider their dietary and health needs, due to the budgetary and logistical
restraints, fell short of all prescribed standards for the minimum treatment of prisoners. The
appellants argued that their right to life was violated or threatened by being fed an inadequate
diet that was contrary to the recommended rations as provided by the law.

They further argued that they were being held in overcrowded prison cells with inadequate
ventilation, coupled with a lack of flushable lavatories. The unsanitary conditions in which they
were held was unsuitable for human habitation which consequently, increased the inmate‘s
vulnerability to contracting communicable diseases such as pulmonary tuberculosis (TB) and
diarrhea. The duo argued that this worsened their health conditions, and was a threat to their
already compromised immune systems. The appellants, aggrieved by the decision of the High
Court, appealed to the Supreme Court, arguing in the main that the learned trial judge of the
High Court misdirected herself in law and in fact when she held that their claims were not
justiciable under the Directive Principles of State Policy contained in Article 112 (d) of the
Constitution.

However, on appeal to the Supreme Court of Zambia, Chief Justice Mambilima, sitting with
Justice Malila overturned the High Court ruling and ruled that ESCR where justiciable when they
made a nexus between the Right to life which is a clearly justiciable right under the First
Generation Rights and the Right to adequate food which is a doubtful non justiciable right under
the Second Generation types of Rights. The rationale behind the ruling seems to be that which
speaks to the interdependence and interconnectedness of some aspects of human rights, that the
violation of one right may lead to the violation of other rights even if it is across or between the

105
George Peter Mwanza and Melvin Beene v Attorney General Appeal No. 153/2016 SC Selected Judgment No.
33 of 2019.

75
so called First Generation Rights (Civil and Political Rights) and Second Generation Rights. It
also speaks to the fact that the enjoying of one right may lead to the enjoyment of the other
rights. For example clean air lead to enjoyment of good life (right to life).

The ruling in George Peter Mwanza and Melvin Beene v The Attorney General 106 is in
agreement with M. Baderin and R. McCorquodale who dispels the myth of non-justiciability of
economic and social rights as something that can no longer be legitimately sustained in
international law and especially in the 21st century107.

The idea on dignity as a basis for human rights provides a conceptual vehicle for introducing the
economic, social and cultural rights indispensable for a person‘s dignity. For example, in the
prominent South African case of Grootboom108, the Constitutional Court held that the right to
housing was infringed by the State‘s inability to provide a South African woman Irene
Grootboom and her community with crisis housing; yet the Constitutional Court was reluctant to
do more with its declaratory order that signal the infringement. This is a positive development
because once second generation rights are made justiciable, it means all persons are guaranteed
the right to get a; decent job, better health, access education and adequate standard of living on
an equal basis with others in line with international obligations109.

Therefore, the notion of indivisibility and interrelatedness of human rights is very cardinal in
ensuring that human rights are fully realized. This means that the protection of each human right
and fundamental freedom depends on the effective promotion and protection of other rights and
freedoms110. For instance, the right to life depends on an individual‘s effective enjoyment of,
among others, the right to food, right to health and right to a clean and healthy environment.
Humans cannot enjoy fully their right to life in the absence of available and accessible health
services and this applies to all other rights.

106
George Peter Mwanza and Melvin Beene v Attorney General Appeal No. 153/2016 SC Selected Judgment No.
33 of 2019.
107
M. Baderin and R. McCorquodale, ‗The International Covenant on Economic, Social and Cultural Rights: Forty
Years of Development‘, in M. Baderin and R. McCorquodale, Economic, Social and Cultural Rights in Action,
OUP, 2007, p.12.
108
Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC).
109
Article (s) 22- 27 of the UDHR
110
VIENNA DECLARATION AND PROGRAMME OF ACTION (1993) Section I Paragraph 5 states: ―All human
rights are universal, indivisible and interrelated and the international community must treat human rights globally in
a fair and equal manner, on the same footing, and with the same emphasis.‖

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7.8. Unit summary

Human rights are fundamental rights that each individual has by virtue of being human and they
are classified into first, second and third generation rights. The enhanced international
acceptance of a measure of justiciability of social-economic rights is part and parcel of the more
general acknowledgement of the interdependence and indivisibility of all fundamental rights
with the central purpose of promoting a dignified human existence. In its current status, the
Constitution of Zambia does not recognize the second and third generation rights as it only
provides for first generation of rights. Consequently, the second and third generations of rights
are non-justiciable hence only civil and political rights can be a subject of adjudication.

End of 7 revision exercise

1. What do you understand by the term ‗justiciability‘?

2. In your own opinion, do you think economic, social and cultural rights should be
justiciable? Explain in detail the reason for your answer with examples.
3. How does the case of George Peter Mwanza and Melvin Beene v The Attorney
General illustrate the concept of interdependence of all sets of generations of rights?
4. Lushomo Chanda is a pupil at Namushakende primary school in North Western Province.
She comes to you complaining that her right to education is being violated as she does
not have sitting space in the classroom due to lack of desks. She intends to make an
application before the High Court to compel the State to provide desks. Proceed to render
your legal advice as legal counsel.

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 UNIT EIGHT

OTHER CORE INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

8.1. Learning outcomes;

- After studying this unit, a student is expected to demonstrate knowledge of other key
international human rights instruments and how they shape human rights in general.

8.2. Introduction

Apart from the International Bill of Human Rights, the UN has adopted a number of specialized
human rights treaties. They are specialized in the sense that they focus on a particular human
rights issue (racial discrimination; torture) or the protection of specific groups of people
(children, women, persons with disabilities etc.). These treaties are considered below;

 International Convention on the Elimination of all Forms of Racial Discrimination

(ICERD) 1965

The principle of non-discrimination is a fundamental principle of the protection of human rights.

As the Universal Declaration of Human Rights proclaimed in Article 1, all human beings are
born equal in dignity and rights. The Declaration further declares in Article 2 that everyone is
entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. Most human rights are denied because of the practice of
discrimination, including on the grounds of race or colour or ethnicity.

The problem of racial discrimination has been one of the most critical issues in human history.
People the world over have suffered discrimination and denied access to a lot of things because
of their race or colour of their skin. Gross human rights violations have been committed over the
centuries on the basis of the supposed superiority of one race over another. The most prominent
examples of denial of human rights because of one‘s race include slavery and the slave trade,
apartheid and colonialism. In Africa for example, millions were uprooted from their homelands

78
and taken to other countries to work as slaves. Almost the entire continent of Africa was under
foreign domination for many years until the latter half of the 20thcentury. Racial segregation or
discrimination was made an integral part of the administration of the colonies. Some groups of
people (white) were regarded as racially superior to other groups (mainly the black Africans).
There was no equal access to the enjoyment of fundamental rights and freedoms.

Because of this background, it is notable that one of the first acts of the United Nations in the
field of human rights was to tackle the problem of racial discrimination and prejudice. The
priority placed on fighting racial discrimination and related practices became particularly evident
when most of the countries in Africa and Asia which had been under colonial domination gained
their political independence.

On 20 November 1963, the UN General Assembly adopted the Declaration on the Elimination of
All Forms of Racial Discrimination which prohibited discrimination based on race, colour or
ethnic origin among other things (Article 1). Two years after the adoption of the Declaration, the
International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) was adopted on 21 December 1965 by the UN General Assembly. The Convention
entered into force on 4 January 1969. As of June 2021, the ICERD had 179 States parties.
Zambia became a party to the Convention in 1972.

Topic 2: Principles of the ICERD

According to the preamble, the States Parties to the ICERD recognize, among others, the
following principles:

 the dignity and equality inherent in all human beings;

 that all human beings are born free and equal in dignity and rights and that
everyone is entitled to all rights and freedoms without distinction of any kind,
in particular as to race, colour or national origin;

79
  that all human beings are equal before the law and are entitled to equal
protection of the law against any discrimination and against any incitement to
discrimination;

 that any doctrine of superiority based on racial differentiation is scientifically

false, morally condemnable, socially unjust and dangerous, and that there is
no justification for racial discrimination, in theory or in practice, anywhere;

 that discrimination between human beings on the grounds of race, colour or

ethnic origin is an obstacle to friendly and peaceful relations among nations
and is capable of disturbing peace and security among peoples and the
harmony of persons living side by side even within one and the same State;

 that the existence of racial barriers is repugnant to the ideals of any human
society;

Topic 3: What is Racial Discrimination?

Article 1(1) of the Convention defines ‗racial discrimination‘ as ―any distinction, exclusion,
restriction or preference based on race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life‖. It is clear to see that Article 1(1) of the ICERD is all
encompassing. It covers all aspects of human life, i.e. civil, political, economic, social, cultural
and others. Racial discrimination under the Convention should be regarded much wider than just
conflict between people of different colour but also that involving people of the same colour but
belonging to different ethnic groups.

In Article 1(2), the Convention allows for certain distinctions to be made between citizens and
non-citizens and Article 1(4) goes further to indicate that a State can take special measures for
the sole purpose of securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection so that there is equal enjoyment of the rights and freedoms
guaranteed in the Convention. This is often referred to as affirmative action or positive
discrimination. In doing so, a State must be careful not to bring about the maintenance of

80
separate rights for different racial groups. Once the objective for which the special measures
were taken is achieved, they should be discontinued.

 Convention on the Elimination of all Forms of Discrimination Against Women

(CEDAW) 1979

Equality of rights for women is a basic principle of the United Nations and of the principles of
human rights in general. One of the central goals of the United Nations as indicated in the
Charter is the reaffirmation of "faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women". In Article 1, one of the purposes of the
United Nations is to achieve international cooperation in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to, among others, sex.
All members of the United Nations, including Zambia, are legally bound to strive towards the
full realization of all human rights and fundamental freedoms for both women and men on equal
footing.

Despite the fact that women and girls are human beings and, therefore, entitled to all the rights
and freedoms due to an individual, they still suffer some of the worst discrimination the world
over. In most cultures, traditions and religions, female persons have generally been regarded as
inferior to males. This has resulted in practices and traditions that have generally disadvantaged
women and girls.

Apart from the Charter of the United Nations, sex discrimination is prohibited in the Universal
Declaration of Human Rights, the International Covenant on Civil and Political Rights and also
the International Covenant on Economic, Social and Cultural Rights. Article 3 of both covenants
expressly requires the guarantee of rights and freedoms on an equal basis for women and men.
However, it has been long recognized that that women require special measures of protection.
This is because historically they have been made especially vulnerable due to a number of
factors.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
was adopted in 1979 by the UN General Assembly. The Convention entered into force in

81
September 1981. As of January 2019 there were 189 States Parties to the CEDAW. Zambia
ratified the CEDAW in 1985. In the preamble, the States Parties, among other things, reaffirm
faith in the dignity and worth of the human person and in the equal rights of men and women. It
is noted that States have the obligation to ensure the equal right of men and women to enjoy all
economic, social, cultural, civil and political rights. The States Parties also note the important
role both parents play in the family and upbringing of children, and that the role of women in
procreation should not be a basis for discrimination but that it requires a sharing of responsibility
between men and women and society as a whole. The States Parties are also aware that a change
in the traditional role of men as well as the role of women in society and in the family is needed
to achieve full equality between men and women.

 What is Discrimination against Women?

Article 1 of the CEDAW defines discrimination against women as ―any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status on a basis of
equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other‖. The main obligation, therefore, of the States
Parties under the CEDAW is to eliminate discrimination against women in all its forms and
promote gender equality in all spheres of life.

 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT) 1984

One of the cruelest things that human beings do to others is subjecting them to acts of torture.
Throughout the centuries torture has been used to punish people due to various reasons. At one
time in history torture was considered a legitimate form of punishment. Torture is an extremely
cruel practice which can result in permanent psychological or physical damage to a person.
Torture and other related forms of inhuman treatment or punishment are now absolutely illegal
in international law. Article 7 of the ICCPR contains a ban on torture without exception. Even
the current Constitution of Zambia prohibits torture in Article 15 without room for exceptional
situations. The seriousness of the phenomenon of torture led the United Nations to elaborate

82
more protective standards against the vice beyond the prohibitions contained in the UDHR and
the ICCPR. In 1975, the UN General Assembly adopted the Declaration on the Protection of
All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. The Declaration proclaimed that any act of torture or other cruel,
inhuman or degrading treatment or punishment is an offence and called on States to take
effective measures to prevent torture and related practices, including ensuring that law
enforcement personnel are trained on its prohibition. Other important provisions included the
call to ensure acts of torture were offences in the criminal law and to provide for the punishment
of offenders.

Nine years later, the General Assembly adopted the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on 10 December 1984. The
Convention entered into force in 1987. As of June 2021, the CAT had a total of 165 States
Parties. Zambia became a party to the CAT in November 1998.

 What is Torture?

In Article 1 of the Convention, torture is defined as:

…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, or
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.

This definition brings out certain essential elements which must be present in order for a set of
facts to reveal torture according to the Convention. The important points to note in the definition
are the following:

1. There must be severe pain or suffering.

2. Such pain or suffering must be intentionally inflicted or caused.

83
 3. The pain or suffering must be inflicted for a purpose, such as to get information or a
confession or simply to punish the victim.
4. The act must be officially sanctioned, i.e., the persons inflicting the pain or suffering
must be doing so using their public official capacities or authority or with the knowledge
of people holding public office and have the ability to stop it. The Convention does not
deal with cases of ill-treatment which occur in an exclusively non-governmental setting.

Unless the circumstances reveal all the above factors, then, technically or for purposes of the
Convention, the act committed is not torture, but may amount to other cruel, inhumane or
degrading treatment.

 Convention on the Rights of the Child (CRC) 1989

One of the most important areas in the promotion and protection of human rights is the field of
children‘s rights. Children, as human beings, are entitled to the full range of human rights
guaranteed in all the international treaties. Human rights are children‘s rights too. Children are
individuals and have equal status with adults as members of the human family. They are not
possessions of parents or people-in-the-making. Almost from the time the United Nations came
into being, the international community has been concerned about the vulnerability of children
and the need to afford them better human rights protection. The Universal Declaration of Human
Rights provides in Article 25(2) that motherhood and childhood are entitled to special care and
assistance. Both the ICCPR (Article 24) and the ICESCR (Article 10) provide that children are
entitled to special measures of protection. Children are vulnerable because they grow towards
independence only with the help of adults. Children‘s dependence and their developmental state
make them particularly vulnerable as they are more sensitive than adults to the conditions under
which they live: poverty, poor housing, environmental pollution, crime and other vices.

In terms of decision making, children generally have no vote and no active part in the political
process. They depend on adults to make crucial decisions on their behalf. The special
vulnerability of children means that they deserve special protection. Some adults exploit
children in various ways because they are too young to protect themselves, both physically and
mentally. On 20 November 1959, the UN General Assembly adopted the Declaration on the

84
Rights of the Child. Although it had no legal force, the Declaration affirmed ten important
principles of children‘s rights. Some of the principles declared included the principle of non-
discrimination; the child‘s right to enjoy special protection to enable his or her physical, mental,
moral, spiritual and social development; the child‘s right to social security and to receive
education. Thirty years after the adoption of the Declaration on the Rights of the Child, the
Convention on the Rights of the Child (CRC) was adopted on 20 November 1989. Today, the
CRC has a near universal record of ratification with 196 States parties by June 2021. Zambia
ratified the CRC in 1992 and domesticated the Convention through the enactment of Children‘s
Code Act in September 2022.

 Who is a child under the CRC?

For purposes of the Convention, a child means every human being below the age of 18 years
unless, under the law applicable to the child, majority is attained earlier. The seems to have
provided some flexibility, considering that the age of 18 years was not necessarily consonant
with the age of majority in various countries, and that the application of the rights recognized in
the CRC to a person who is no longer a minor could be incompatible with his or her legal status.
It was therefore decided to qualify the upper age limit of 18 years by the earlier attainment of
majority under the law applicable to the child. Similar provisions in other instruments also
provide for the upper limit of 18 years. Article 2 of the African Charter on the Rights and
Welfare of the Child, says for the purposes of the Charter, a child means every human being
below the age of 18 years. Article 1(1) of the European Convention on the Exercise of
Children’s Rights, adopted at Strasbourg on 25 January 1996, provides that the Convention shall
apply to children who have not reached the age of 18 years. These two instruments do not seem
to have adopted the flexibility of the CRC in defining the term ―child‖.

 Rights, Freedoms and principles in the CRC

The CRC is a very extensive document. It integrates economic, social, cultural, civil and
political rights all in one document, thus highlighting the indivisible and inter-dependent nature
of human rights. According to the General Guidelines Regarding the Form and Contents of

85
Periodic Reports to be submitted by States Parties under Article 44 paragraph 1(b) of the
Convention, the CRC revolves around four general principles:

1. Non-discrimination

2. Best interests of the child

3. Right to life, survival and development

4. Respect for the views of the child

The Second World Conference on Human Rights held in Vienna in 1993 also reaffirmed the
CRC general principles when it proclaimed that in all actions concerning children, non-
discrimination and the best interests of the child should be primary considerations and the views
of the child given due weight. The African Charter on the Rights and Welfare of the Child also
has a specific provision on the ‗best interests of the child‘. Article IV (1) reads:

In all actions concerning the child undertaken by any person or authority the best
interests of the child shall be the primary consideration.

 The International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families (CMW)

This was adopted in 1990 and entered into force on 1 July 2003. By January 2019 there were 54
States parties. Zambia is not yet a party. In its preamble, the CMW takes into account and
recalls principles and standards set forth in basic instruments of the UN concerning human
rights, and also principles and standards set forth in the relevant instruments elaborated within
the framework of the International Labour Organisation (ILO). The Convention considered the
vulnerability of migrant workers and their families owing, among other things, to their absence
from their State of origin and to the difficulties they may encounter arising from their presence in
the State of employment. The CMW is an extensive document. However, much of it is a re-
statement of the classic civil, political, economic, social and cultural rights placed in the context
of migrant workers. The CMW establishes the Committee on Migrant Workers in Article 72.

86
The Committee supervises State implementation of the Convention through the State reporting
procedure (Article 73), individual communications (Article 77, optional) and inter-state
communications (Article 76, optional).

 International Convention for the Protection of All Persons from Enforced

Disappearance (ICPPED) 2006

This convention which was adopted by the UN General Assembly on 20 December 2006, affirms
the right of any victim to know the truth about the circumstances of an enforced disappearance.
The Convention came into force in December 2010 and as of January 2019 there were 59 States
parties. Zambia ratified the Convention on 4 April 2011. The Convention defines ―enforced
disappearance‖ as ―the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which places such a person
outside the protection of the law” (Article 2).

The Convention goes on to state that the widespread or systematic practice of enforced
disappearance constitutes a crime against humanity and that a State should take necessary
measures to make enforced disappearance an offence under its criminal law. The prohibition of
enforced disappearance is absolute and no exceptional circumstances, whether a state of war or
threat of war, internal political instability or any public emergency, may be invoked as a
justification for enforced disappearance. It also prohibits holding a person in secret detention.

 United Nations Convention on the Rights of Persons with Disabilities , 2006

On 13 December, 2006, the UN General Assembly adopted the Convention on the Rights of
Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of
Persons with Disabilities. The Convention entered into force in 2008. As of June 2021 there
were 177 States parties. Zambia became a party to the Convention on 1 February, 2010. The
purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all
87
human rights and fundamental freedoms by all persons with disabilities and to promote respect
for their inherent dignity. The Convention is very extensive and places all the relevant human
rights in the context of the special circumstances of persons with disabilities. The general
principles of the Convention shall be:
 Non-discrimination
 Full and effective participation and inclusion in society
 Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity
 Equality of opportunity
 Accessibility
 Equality between men and women
 Respect for the evolving capacities of children with disabilities and respect for the right
of children with disabilities to preserve their identities.

 The Meaning of Disability

Adopting a single comprehensive definition of disability has always been an elusive conception
despite it being part of human condition from time immemorial and as such, a number of
scholars use various models to define disability. Up to date, there is no consensus on any of the
definitions as new approaches to defining disability have keep on developing since the 1970s
with much focus on disability as an abstract concept111.

Disability has been defined as a state of being disabled. The state of being disabled has been
linked to loss or limitation of opportunities to take part in the normal life of the community on an
equal level with others due to physical and social barriers112. Disability according to the United
Nations Convention on the Rights of Persons with Disabilities (CRPD) is the interaction between
persons with impairments and attitudinal or environmental barriers that hinder full participation

111
Judith Hollenweger (2014). Definition and classification of disability: Companion Technical Booklet- Webinar
Booklet, p 10.
112
Dimitris Anastasiou, James M. Kauffman (2013). The Social Model of Disability: Dichotomy between impairment
and Disability: Journal of Medicine and Philosophy 38 (4), p 442.

88
in society on an equal basis with others113. The CRPD concept of disability is similar to the way
disability is defined in the Persons with Disability Act114 and the Zambian Constitution115.

The CRPD creates the Committee on the Rights of Persons with Disabilities to supervise its
implementation by the States Parties. The Committee has the competence to consider reports by
States Parties on the measures they have taken to give effect to its provisions. When a State also
becomes a party to the Optional Protocol, the Committee will have the mandate to consider
individual complaints and, where it receives reliable information of grave or systematic
violations by the State Party of the Convention, conduct an inquiry as long as the State did not
opt-out of the procedure at the time of ratification or accession. As of June 2021, there were 93
States parties to the CRPD-OP.

International developments which saw the birth of the United Nations Convention on the Rights
of Persons with Disabilities (hereinafter CRPD) which Zambia ratified in 2010, has led to the
validation of PWDs as human rights orders and has contributed much in reframing the needs and
concerns of PWDs in terms of human rights. The human rights approach has moved away from
viewing persons with disabilities as people needing aid, medical treatment and social protection,
rather the disabled are now viewed as right holders116. The Convention on the Rights of Persons
with Disabilities(CRPD), the most recent and most extensive recognition of human rights of
persons with disabilities, whose purpose is to promote and protect the rights of PWDs at
international level117- outlines the nature of disability rights in terms of civil, political, economic,
social, and cultural rights of persons with disabilities118. The CRPD applies human rights to
disability, thus making general human rights specific to persons with disabilities and clarifying
existing international law regarding disability.

113
Article (1) of the CRPD, 2006
114
Act No. 6 of 2012, art (2) “disability means a permanent physical, mental, intellectual or sensory impairment
that alone, or in combination with social or environmental barriers, hinders the ability of a person to fully or
effectively participate in society on an equal basis with others.
115
art 266, Act No. 2 of 2016.
116
Supra note 7, P. 12
117
Preamble of the CRPD, 2006
118
World Report on Disability (2011). World Health Organization, p 9

89
World over, States are reviewing their disability laws so as to align them with the CRPD
principles which are a building block and an explicit aspect of sustainable development 119. In
Zambia for example, The Persons with Disabilities Act120 is the primary law enacted to address
the human rights of PWDs. This Act seeks to domesticate the Convention on the Rights of
Persons with Disabilities and contains a lot of progressive provisions that address the social,
economic, political and cultural rights of PWDs in Zambia121. Another primary piece of
legislation which specifically and directly tackles rights of PWDs‘ is the Mental Health Act122
which provides for the care and access to mental health services of persons with mental
disabilities on an equal basis123.

The coming into force of the CRPD is a welcome and significant move as it will contribute to
PWDs having their rights more recognized and respected which will lead to dignified living
existence among the PWDs. PWDs face numerous difficulties to achieving their human rights
when it comes to; access to employment, accommodation, wellbeing, political contribution,
recreation and relaxation activities.

Other challenges persons with disabilities face include; discrimination, stigmatization, poverty,
among others. Generally it can be said that negative attitude from society, family and friends
about persons with disabilities affect their enjoyment of human rights. From ancient times,
opinions towards disability have varied considerably from one community to another in terms of
how disabled people are handled ranging from complete acceptance to overall denial depending
on the particular culture124. All over Africa, persons with infirmities are perceived as hopeless
and normally roots of disability are ascribed to bewitchment, juju, sexual factors and mystical
forces. Such fallacies have made PWDs to be usually depicted as individuals influenced by
wicked spirits, outcast or as financial burdens. For instance, in Zimbabwe and Kenya a child with
a disability is a sign of spell on to the entire clan and such a kid is concealed from the community

119
United Nations (2011). Including the Rights of Persons with Disabilities in United Nations Programming at
Country Level: A Guidance Note for United Nations Country Teams and Implementing Partners, p 11. www.un.org
accessed on 28/12/2020.
120
Act No. 6 of 2012.
121
Preamble of The Persons with Disabilities Act, 2020
122
Act No. 6 of 2019
123
Ibid, art (15) and preamble.
124
ChombaWaMunyi (2012). Past and Present Perceptions Towards Disability: A Historical Perspective Vol. 32, No 2

90
or frowned upon125. Equally in Zambia where about 2 million men and women have a disability,
PWDs have traditionally been portrayed as a disadvantaged group and continue to undergo
serious human rights abuses such as discrimination, dehumanization, and undesirable treatment
based on their status and where women have disabilities they are especially vulnerable to abusive
treatment such as rape and defilement126. Somewhat related to these inhumane approaches was
the trend to asses disability as eccentricity and unwelcome irreparable health disorder.

It is hoped that the domestication of the CRPD in many African States and the world at large as
well as domestication of the Convention by the Zambian government thorough the Persons with
Disabilities Act, 2016, will lead to the increased promotion and protection of rights of PWDs.

8.3. Unit summary

This unit has discussed a number of core international human rights instruments which
supplement the international bill of rights in the protection and promotion of human rights. Such
international core human rights documents include; Convention Against Torture- which prohibits
all forms of inhumane and degrading treatment, Convention on the Rights of a Child- which
promotes and protects the rights and welfare of children, and many more. These documents
supplement the international bill of human rights and provide more extensive rights on specific
areas. The ultimate goal is to promote human dignity, core existence, tolerance and international
cooperation in the area of human rights. The CRPD promotes the rights of Persons living with
Disabilities (PWDs) which is a significant in ensuring that PWDs enjoy their rights on an equal
basis with others without discrimination in order to have a dignified existence.

8.4. End of unit 9 revision exercise

a. Discuss the best interest principle as provided for in the Convention on the Right of a
Child (CRC).
b. Mubita is a police officer working for Zambia police service. On the 24th of December
2002, Mubita was working half day and after knocking off he went out to celebrate New

125
ibid
126
Zambia [Country Reports] [2014] ADRY 13

91
 Year‘s Eve at Decapo night club in Lusaka where he had a fight with Njoloma a teacher
at Kaniki primary school. Njolomba was beaten to pulp by Mubita while clad in police
uniform and pointing a gun at him. Njolomba is at your law firm seeking advice on
whether he can proceed to sue Mubita and Zambia police service for torture. As legal
counsel, render your legal opinion.
c. Discuss why women and children are accorded special protection in the international
human rights framework.
d. Ms Musonda an American does not like Kangwa because he is an African by descent and
his color irritates Ms Musonda such that she denied Kangwa an opportunity to be
employed as a Chef. Discuss the rights which have been violated and which Convention
rights protect Kangwa in this situation.
e. In your own view, do you think the human rights treaties discussed in this unit have made
much impact in the global society? Explain with reference to relevant examples.
f. Define disability
g. Discuss challenges faced by Persons with Disabilities (PWDs)
h. What is the purpose of the CRPD?

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 UNIT NINE

STATE OBLIGATIONS TOWARDS HUMAN RIGHTS

9.1. Objectives

At the end of this unit, students should be able to;

- Understand the nature and extent of obligations that States have towards human rights.
- Appreciate various ways in which the State can ensure protection and promotion of
human rights

9.2. Introduction

An obligation is a moral or legal duty imposed on someone to perform a certain duty or refrain
from doing something. States as key actors in concluding various human rights treaties or
conventions as discussed above are placed with weighty responsibilities to in the area of
advancing the rights and freedoms of citizens and aliens respectively. Traditionally, human rights
focus on the rights of the individual and the corresponding obligations of the State to protect
human rights. The State is primarily responsible for ensuring respect for and observance of
human rights. It is the State which is a party to international human rights instruments and
assumes direct obligations in relation to human rights.

9.3 The threefold obligation of States

At the centre of all human rights pursuit is the notion of human dignity and respect or dignified
existence. This entails that the state as a duty holder carries a threefold obligation. The law of
human rights requires states to respect protect and fulfill human rights127. In accordance with the
Human Rights Committee, States are required to undertake all appropriate measures such as
judicial, legislative and other appropriate measures in order to fulfill their legal obligations128.
The obligation to respect invites the State to refrain from interfering in the enjoyment of the

127
Gabor, Rona & Lauren, Aarons (2016). State Responsibility to Respect, Protect and Fulfill Human Rights
Obligations in Cyberspace: Journal of National Security Law and Policy, Vol. 8: 503, P506.
128
Human Rights Committee, General Comment No. 31: “The Nature of the General Legal Obligations Imposed on
States Parties to the Covenant”. UN Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004).

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rights of its citizens. The obligation to protect entails that the State protects its citizens from
outsides influences in their enjoyment of human rights and the obligation to fulfill calls on the
State to take positive action to ensure and facilitate the enjoyment of basic human rights 129.

The international instruments, as developed through case law, impose positive obligations upon
states to ensure the enjoyment of human rights. For example, in Velasquez Rodriguez v
Honduras130 the Inter-American Court of Human Rights interpreted the IACHR , article 1
(―states parties undertake to respect … and to ensure‖ the convention rights‖) to encompass
positive state action to prevent human rights violations and to investigate and punish them when
they occur. Equally, the European Court of Human Rights has also asserted positive obligations
in a number of cases. In Airey v Ireland131 it held that the protection of human rights must not
be theoretical or illusory, but practical and effective and accordingly required the state to take
positive action to ensure their enjoyment, in this case legal aid provision to enable a woman to
seek a judicial separation.

The cases mentioned above impose positive obligations on the State to secure civil and political
rights but the same principle applies to secure economic social and cultural rights. By becoming
parties to international human rights treaties, States incur three broad obligations: the duties to
respect, to protect and to fulfill.

1. Obligation to respect
The State obligation to respect means that the State is obliged to refrain from interfering. It
entails the prohibition of certain acts by Governments that may undermine the enjoyment of
rights. For example, Part II of the ICCPR (Articles 2-5) governs the State obligations regarding
the implementation of the rights guaranteed therein. In particular, Article 2(1) provides that:

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 recognised in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, birth, or other status.

129
Supra note 5, p 507.
130
International Legal Materials (1989) 294.
131
ECHR (ser. A) 1979.

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The obligation to respect in the area of civil and political rights indicates the negative character
of civil and political rights. States parties are required to refrain from restricting the exercise of
rights and freedoms where such is not allowed. A duty of forbearance is thus imposed on
States parties and its extent depends on the formulation of the particular right.

2. Obligation to protect
The obligation to protect requires States to protect individuals against abuses by non-State actors.

3. Obligation to fulfill
Under the obligation to fulfill, States are required to take positive action to ensure that human
rights can be exercised and realized. It means States parties must take positive steps to give
effect to the rights and freedoms in the Covenants. It is a duty of performance and requires
States parties to adopt necessary legislative and other measures and to provide an effective
remedy to victims of human rights violations. Another important aspect of the duty to perform is
―to safeguard certain rights institutionally by way of procedural guarantees or the establishment
of relevant legal institutions.

In the area of ESCR, obligation to fulfill includes the need for States to132;
- Undertakes to take steps...by all appropriate means, including particularly the adoption of
legislative measures with a view to achieving progressively the full realization of the
rights without discrimination

9.4. Non-Government organizations

Just like the media which takes an active role in dissemination of human rights issues and
sensitizing the masses on human rights violations, Non-Government organizations (NGOs)
equally play an important role when it comes to the duty to promote human rights. NGOs work
for the welfare of people. These organizations also fight for the protection of Human Rights.
There is hundreds of NGO‘s working at the national, regional and international level for the
cause of the protection of Human Rights. Non government Organizations (NGO's) are voluntary
organizations. They are formed by people who want to work for the welfare of people in general

132
Article 2 of the ICESCR.

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and the less privilege and help less in particular. The central Government has its limitations in
providing welfare measures like means of livelihood, education and health services to people
who need them133.

These organizations are financially supported by business organizations. And, above all, NGO‘s
have personal contact at the grass root level. Activists in these organizations have health
relations or rapport with general public. And, therefore, they can serve people better than
government officials in the fields like educations, protection of human rights, health, Child
welfare, environment a protection, rehabilitation of displaced people etc.

NGO‘s can do the following activities for the welfare of people –

1) NGO‘s can run educational institutions for education of the masses in order to increase access
to education for all which in turn enhances right to education.

2) The voluntary organizations fight for the protection of human rights of people. They can file
petitions in law courts for safeguarding the fundamental rights of people.

3) NGO‘s can undertake various activities for protecting the physical environment thereby
promoting environmental rights.

4) These voluntary movements can concentrate on bringing about rural development of the
country. For this purpose they can plan and undertake different activities that will lead to
development in agricultures and its allied fields.

5) NGO‘s can provide medical assistance and health services to the needy people.

6) Activists of NGO‘s can arrange child welfare activities especially for undernourished,
physically handicapped, mentally disabled and street children and help the government to
monitor the welfare activities undertaken by the state. But when the government activities clash
with the interests of people, NGO‘s oppose the government and pressurize it to act in the
interests of people134.

133
https://www.humanrights.com/voices-for-human-rights/human-rights-organizations/non-governmental.html
134
Ibid.

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NGO‘s work tirelessly for the cause of less privileged people and in protecting human rights
such as civil, political, and economic, socio-cultural rights, rights of disadvantaged persons, right
to development and environmental rights. In Zambia just like many parts of the world, various
NGOs operate in advancing human rights. Some of the NGOs include; Chapter One Foundation,
Alliance for Community Action, Action Aid, etc. All of these institutions have done a lot in
promoting human rights in Zambia. However, the discussion of the workings of the NGOs in
Zambia is out of scope of this module, therefore, as a student who may be interceded in knowing
more about NGOs and human rights activities in Zambia and around the world may do well to do
personal research and get a glimpse at the operations of NGOs in the protection of human rights.

9.5. Unit summary

States are bound to respect, fulfill and protect human rights. This obligation is enshrined in
various human rights documents such as the ICCPR and the ICESCR. The State has a duty to
protect, promote and respect human rights. This calls for deliberate policies and implementation
of positive measures to ensure that human rights are enjoyed by everyone. NGOs just like the
media too play a significant role in the promotion of human rights as such; the State should
create favorable environment for the workings of NGOs without much political interference.

9.6. End of unit 9 revision exercise

- Explain state obligations towards human rights.

- State the difference between negative and positive obligation in as far as state obligations
towards human rights is concerned.
- What are N GO‘S and what do they do for the people?
- How do NGOs contribute to the promotion and protection of human rights?

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 UNIT TEN

CONTEMPORARY ISSUES IN HUMAN RIGHTS- ZAMBIA AND AFRICA

10.1. Learning objectives

At the end of this unit, it is expected that a student will;

 Have an insight on focus the particular rights that are topical and burning for the Zambian
society, as well as for Africa
 Be able to contribute well informed debates on topical human rights issues
 Have ability to apply theory to practice

10.2. Introduction

In recent years, Zambia and Africa at large is faced with various contemporary human rights
issues needing attention by all human rights advocates and law practitioners as well as all
stakeholders. With the change in political, economic and technological landscapes, the continent
is faced with various challenges worth of focus in a human rights context. This unit will
endeavor to explore some of these topical issues. Focus will be on death penalty, abortion, social
media, foreign debt and poverty.

10.3. Foreign debt

The International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the African
Charter on Human and People‘s Rights (African Charter) provides for economic and social rights
(ESR) such as right to work, food, housing, health etc. For example, The ICESCR requires states
to recognize the right of everyone to the enjoyment of the highest attainable standards of
health.135 In particular, states are obligated to take steps including prevention, treatment, and
control of epidemics, endemics, occupational and other diseases.136 The Universal Declaration of
Human Rights (UDHR) provides that everyone has the right to medical care and necessary social

135
International Covenant for Economic Social and Cultural Right, 1976 art. 12(1).
136
ibid, art. 12(2)(c).

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services.137 Further, the African (Banjul) Charter on Human and Peoples‘ Rights (ACHPR)
provides that every individual shall have the right to enjoy the best attainable state of physical
and mental health.138

These rights accrue to every person by virtue of their being human, and the government has the
mandate to uphold these rights. Laws of various countries such as Kenya, Zimbabwe, Nigeria,
etc., have incorporated ESR in their national laws139.

Government spending on providing adequate standards of living and good health receives less
attention for example spending on healthcare compared to the amount spent on foreign debt in
Zambia, Kenya and Nigeria shows that foreign debt is taking up a significant part of government
expenditure. It is true that the causes of under financing to ESR in Africa are numerous;
however, foreign debt is also a major contributory factor. Governments can ensure
implementation through using their finances to provide essential services. This is particularly
crucial in developing countries where citizens do not have access to employment or sources of
income. However, if countries are using finances in foreign debt repayments, then their available
resources are not being utilised to their maximum towards the realization of quality education,
appropriate healthcare and provision of service delivery to the citizens. If a government fails to
provide the poor with minimum ESR, the welfare of individuals is likely to suffer. Aristotle
argues that a government needs to guarantee the welfare of society which envisions the state as
providing for those that lack access to certain services.140

Despite repeated rescheduling of debt, developing countries continue to pay out more each
year than the amount they receive in official development assistance. The increasing debt
burden faced by the most indebted developing countries is unsustainable. For example in 2021
financial year in United States Dollars, Kenya‘s debt stood at 35,061,114,195.00141, Zambia‘s
debt was 13,041,200,000.00142, Nigeria‘s debt amounted to 38,391,320,000.00143. External debt

137
Universal Declaration of Human Rights, 1948 art. 25
138
African (Banjul) Charter on Human and Peoples’ Rights, 1986 art. 16(1).
139
See for example, the Constitutional Bill of Rights for Zimbabwe and Kenya.
140
Giovanni Giorgini, “Aristotle on the Best Form of Government,” Enthousiasmos, 2019, 121–46,
https://doi.org/10.5771/9783896658043-121.
141
Central Bank of Kenya, “Public Debt | CBK,” centralbank.go.ke, 2022,
https://www.centralbank.go.ke/publicdebt/.
142
Ibid.

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service for Kenya in the period 2019-2021 in USD was 1,190,000,000144 while that of Nigeria
was 2,109,511,950145 and Zambia was 206,700,000.146

The above figures indicate that millions of USDs are spent on debt servicing by the three
countries which is a significant amount. Such moneys could have been channeled to the
realization of ESR if it was not for foreign debt. It is clear that foreign debt is chocking Africa‘s
development and most importantly human rights in a negative way. These disparities should be
concerning and deserve more attention because human beings are competing for scarce resources
with foreign debt servicing

The historic and ongoing debt crisis in Africa and the policies imposed by IMF and other lenders
that have entrenched debt have created significant obstacles to the realization and protection of
fundamental rights in Africa, including to the population‘s economic and social rights. IMF loan
conditions, including the imposition of fiscal austerity measures, which prioritize debt
repayment, fiscal discipline, privatization, and trade liberalization, have decreased Africa's
ability to invest in its population. It presents one of the greatest obstacles to developing
sustainably and eradicating poverty. For many developing countries, excessive debt servicing has
severely limited their ability to promote social development and provide basic services to create
the conditions for the realisation of economic, social and cultural rights.

While economic and social rights (ESR) are recognized in national and international law, their
enjoyment in some African countries is constrained. This results out of corruption and
mismanagement of available funds and is further impacted upon by foreign debt, which plays a
substantial role in limiting access to resources needed to fund government services. The link
between government services and human rights is evident particularly with respect to ESR. For
example, the right to health can progressively be achieved if a government invests adequately in
the healthcare sector by ensuring availability of adequate healthcare workers to cater for patients.
Countries that take on significant foreign debt direct a large part of government resources
143
Ibid.
144
East African Newspaper, “Kenya’s Budget Proposes to Raise Debt Ceiling to Fund Recovery - The East African,”
accessed June 22, 2023, available at; https://www.theeastafrican.co.ke/tea/business/kenya-budget-proposes-to-
raisedebt-ceiling-to-fund-recovery-3779898.
145
Nigeria Debt Management Office, “Actual External Debt Service Payments January-December 2021”
https://www.dmo.gov.ng/debt-profile/external-debts/debt-service.
146
Bank of Zambia, “Annual Report 2021 Bank of Zambia.”

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towards its servicing which then reduces spending on essential public goods and services. The
primary remedies to address growing foreign debt include restructuring the debt and ensuring the
proper management of available resources. If the adverse impact of foreign debt is not
recognized, the realization of ESR will continue to be constrained in Africa.

10.4. Poverty

About 60% of the world extreme poor live in Sub-Saharan Africa147. Poverty and inequality is a
constant phenomenon persisting in many countries in Africa Zambia inclusive. As Africa
continues to grow economically stronger, poverty and inequality remain ‗unacceptably high and
the pace of reduction unacceptably slow.

 Is poverty a human rights issue?

Human rights define the entitlements considered necessary for a life of dignity in society,
including the right to an adequate standard of living, that is, the right to be free from poverty. At
this high level of abstraction, the elimination of poverty and realization of human rights are
similar in that both clarify what needs to be done so that all human beings enjoy minimal
standards of a decent existence. According to the UN, for those living in poverty, many human
rights are out of reach 148. Among many other deprivations, they often lack access to
education, health services, safe drinking water and basic sanitation. They are often excluded
from participating meaningfully in the political process and prevented from seeking justice for
violations of their human rights.

Extreme poverty can be a cause of specific human rights violations, for instance because the
poor are forced to work in environments that are unsafe and unhealthy. At the same time,
poverty can also be a consequence of human rights violations, for instance when children are
unable to escape poverty because the State does not provide adequate access to education.
The elimination of extreme poverty should not be seen as a question of charity, but as a

147 Sammuel Kofi Tetteh Baah et al (2023). March 2023 global poverty update from the World Bank: the
challenge of estimating poverty in the pandemic. Available at; https://blogs.worldbank.org/opendata/march-2023-
global-poverty-update-world-bank-challenge-.
148
United Nations Special Rapporteur on extreme poverty and human rights. Available at:
www.hchr.org/en/special-procedures/sr-poverty/about-extreme-poverty-and-human-rights#.

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pressing human rights issue. Its persistence in countries that can afford to eliminate it amounts
to a clear violation of fundamental human rights.

Discussion questions:

a. Is poverty a human rights issue? If yes, what is the relationship?

b. Would you consider human rights as a regime that is hostile to the interests of the poor?
If yes, to what extent?

10.5. Social media

The explosive rise in social media use across Africa is redefining how citizens, governments, and
corporations relate to each other.

The fourth industrial revolution (4IR), with the fifth industrial revolution (5IR) looming, has
ushered in a new wave of digital technologies and advanced networking systems that have
drastically impacted the way we conduct day to day life, business and communicate with one
another on a global scale, with social media being the primary tool of use for many people.
However, this wave of innovations also comes with potential risks whilst carrying advantages
and opportunities. Despite these technology developments, there is a slow-paced development of
laws that speak directly to social media use with direct provisions that protect people against
malicious uses of social media.

 Social media as tool to uphold human rights

Social media and 4IR combined have heightened awareness of human rights violations and
facilitated advocacy efforts leading to a strengthening and backing of existing international and
domestic laws meant to protect and promote human rights. Social media platforms have also
helped advocacy efforts to monitor and document human rights violations, draw attention to
human rights issues, communicate human rights messages and broaden access to knowledge and
information. There are many instances where people were held accountable and human rights
preserved through social media. This is evidence of the positive change that technology, through
social media, has in terms of upholding human rights and holding those who will potentially
tamper on the rights of others accountable. With the increased access to data analytics, 4IR has

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improved the ability of civil monitoring initiatives to track human rights violations and advocate
for equitable policies.

 The other side of the coin

However, although some technologies may come with positive impacts on the lives of different
people, some of the new technologies such as artificial intelligence (AI), facial recognition
software and other algorithmic systems can be misused to facilitate monitoring and surveillance
of individuals, violating their basic civil liberties. Some technologies can facilitate automated
decision-making based on data, which can lead to decisions that are biased or discriminatory.

Social media, on the other hand, can have a negative impact on human rights laws, as increased
connectivity can lead to increased censorship, intimidation, and surveillance of individuals.

In July 2020, a Member of Parliament and Minister of Education, David Mabumba was fired
from his ministerial position in Zambia, all this as a result of an alleged pornographic video of
him which circulated on social media depicting him as fondling his genitals while on a
WhatsApp video call with unidentified woman. Arguably, the matter had nothing to do with his
personal life; however, the then republican President Edgar Lungu still dismissed him following
the above-mentioned sex video scandal.

Some employers also do background checks of social media activities of their potential
employees, which can hinder one from securing employment if one has posted anything that
goes against the employers‘ preference even if it is not morally wrong or criminal. Social media
can be used to spread false information and disinformation, which can be used to target certain
groups and perpetuate hatred such as tribalism. Furthermore, companies can use data gathered
from social media to discriminate against people, such as those belonging to particular religious
or political groups.

Additionally, social media can be used to infringe on human rights such as the right to
privacy and the right to human dignity. Some bloggers photograph and feature people who do
not consent to being recorded. Instead, some bloggers and social media account owners simply
records people while talking to them. In some videos, the featured person could be a worst
physical or poor health state. At times, patients, mourners and victims are filmed and recorded
without their consent. All this amounts to invasion of privacy.
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  The dangers of commercialisation

The behaviour of taking videos or photos of people, especially in compromising, embarrassing

and undignified states, has become very prominent on social media. People even perform pranks
on strangers in public places and post their videos without their consent. With social media
becoming even more commercialised, the need for people to gain more followers is
exponentially growing and leads to most people desperately collecting any content that can get
them more followship or likes from other fellow users. On TikTok, as an example, one can apply
for the TikTok Creator Fund if they have a followship of over 10 000 followers, whilst on
YouTube one needs over 1 000 subscribers and 4 000 watch hours in the past year to start getting
paid by the video sharing company.

Although the commercialisation of social media is positive particularly in addressing

unemployment and generally creating more avenues for content production, some users
negatively use the social media networks, and little is done by the social media companies to
educate their users about their conduct on social media and the respect of human rights. This is
the case despite most social media companies having community standard policies that prohibit
hate speech, bullying and harassment, nudity and sexual activity, violence and graphic content,
and fake accounts and spam, and also content that impact on minors‘ safety and intellectual
property. Be that as it may, social media users are still able to post content that is prohibited by
the social networks‘ policy until the content is reported, and has been verified as going against
the social network‘s community standards. Only then can such content possibly be removed and
the little accountability that the user who posted such content can incur is being removed from
social media for a few days or such account suspended. Bearing in mind the above, social media
users are still able to post content that transgress the rights of others

 Legislative remedies

In Zambia, the Cyber Security and Cyber Crimes Act, Electronic Communications and
Transactions Act, and the Constitution of the Republic of Zambia protect the rights of citizens in
respect to them being video recorded or photographed that are posted on social media without
their consent. There is also an alarming trend of teachers who post videos and photos of minors
in which majority of these times, the videos humiliate the child and intends to be funny to other
social media adult users. Similarly, some public pranks are humiliating to the person who is

104
recorded, whilst intended to be funny to other social media users. These are some instances
where human rights are violated and go without recourse.

Social media can be a positive tool for the society and its users at large. However, the lack
of accountability and compliance of the community standards threaten human rights. As such,
there needs to be clear definitive legislature that outlines social media use guidelines with respect
to human rights. Additionally, people must be educated of their human rights and those of others
in respect of social media. Moreover, social media networks must strengthen enforcement of
their social media policies with regards to community standards to ensure that violation of
human rights does not occur on their platforms, and that if it happens, there is recourse from their
side. Scholars and researchers including Law students undertaking human rights course need to
also intensify their work on the subject and conduct more solution-based research on it.

 Discussion questions:

a. How best do you think invasion of privacy can be tackled on social media?

b. How do social media impact on human rights in Zambia and Africa at large? Give
examples.

c. Is it necessary for the government to regulate use of social media? If yes, how far should
the government go in regulating social media users?

10.6. Abortion

Abortion is recognized as an emotive, debatable, sensitive and even divisive issue world- over.
In Zambia, the promulgation of the Constitution, 1996149, introduced a new legal dimension of
abortion. Prior to this reform, Zambia‗s law on abortion was very restrictive, allowing abortion
only to save the life of the pregnant woman. According to Gadaffi, the contemporary anti-
abortion debate in most African States including Zambia dates back to the Roman Catholic

149
See Art 12 of the Constitution of Zambia 1996.

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Church‗s circular letter (Humanae Vitae)150 of 1968 which condemned both sterilization and
abortion151. As expressed in the letter:

―In truth if it is sometimes licit to tolerate a lesser evil in order to avoid a greater evil or
to promote a greater good, it is not licit, ever for the gravest reasons, to do evil so that
good may follow therefrom...even when the intention is to safeguard or promote
individual, family or social well-being152.‖

Gadaffi considers the above quote as a natural law school argument, which has a significant
bearing in the anti-abortion debate. In Zambia, the premise for abortion is the Constitution which
is the supreme law of the land. In article 12 (2), the constitution protects the rights to life of an
unborn child while at the same time adding an exception that abortion may be justified when
permitted by the law. The Termination of Pregnancy Act (TOA) is the legislation that regulates
safe and legal abortion in Zambia153. The background to the enactment of this law is the case of
Bwanausi v The People154. In 1972, a daughter of a prominent Zambian family died from a
failed abortion procured from a private medical practitioner Dr. Bwanausi. Whilst the Penal
Code, through Section 151, criminalized abortion, there was no clear framework for regulation of
the practice as such the State could not charge Dr. Bwanausi under the Penal Code provisions.
The State charged Dr. Bwanausi with manslaughter, and proceeded to undertake steps to regulate
the provision of abortion care through the introduction of the Termination of Pregnancy Bill
before Parliament.

In some cases, some medical practitioners refuse to conduct abortions based on freedom of
conscience155. Generally, a conscientious objector is an "individual who has claimed the right to

150
Humanae Vitae is a Latin phrase which means ―Of Human Life.‖ It is a circular letter written by Pope Paul VI
regarding married love, responsible parenthood and the continued rejection of most forms of birth control, and
issued on 25 July 1968 to all Roman Catholic churches.
151
Yohana Gadaffi, ‗The Place of Natural Law in Kenya‘s Jurisprudence (2014) 2 (6) Journal of Research in
Humanities and Social Sciences 39, 43.
152
Humanae Vitae, n 14.
153
Termination of Pregnancies Act, 1972; Read the Act to have an understanding on the circumstances when
abortion can be considered legal and permissible in Zambia.
154
Bwanausi v The People (1976) Z.R. 103
155
Chavkin W, Leitman L, Polin K (2013). Conscientious objection and refusal to provide reproductive healthcare: a
White Paper examining prevalence, health consequences, and policy responses Int J Gynecol Obstet, 2013; 123.

106
refuse to perform a certain service" on the grounds of freedom of thought, conscience, or
religion. Under the international human rights regime, conscientious objection is seen as a
human right which has its basis in the freedom of conscience. Article 18 of the UDHR
guarantees the right to freedom of thought, conscience and religion.156 Article 18(1) ICCPR
equally guarantees this right.157 In the same vein, the Constitution of Zambia protects freedom of
conscience and provides for health care providers to conscientious objection in article 19 (1),
which gives freedom to a medical practitioner to make a choice as to whether to accept
administering an abortion or not based on religious conviction.

In Zambia, and the world over, health care providers‘ right to conscientious objection is a
complex issue. It often poses conflict firstly between the provider‘s personal beliefs and
professional responsibilities and secondly between the providers right to freedom of conscience
and women and girls right to health and self-determination. Lack of proper regulation to
conscientious objection may create conflict regarding which rights to prioritize and honor
between the women‘ right to access reproductive health services and the health care providers‘
right to freedom of conscience, which includes freedom of thought and religion.

The United States (U.S.) has had a great impact in abortion debate and issues to do with legal
abortion. Based on the right to privacy principle, the question of abortion emerged in the 1973
US Supreme Court‗s landmark decision in Roe v Wade158. Decided on 22nd January 1973
simultaneously with another case, Doe v Bolton159, the Court, by a 7-2 vote, ruled that the right
to privacy extended to a woman‗s decision to have an abortion, but that right must be balanced
against the State‗s two legitimate interests in regulating abortions: protecting prenatal life and
protecting women‗s health160. Arguing that these interests became stronger over the course of a
pregnancy, the Court resolved this balancing test by tying State regulation of abortion to the

156
United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III),
https://www.refworld.org/docid/3ae6b3712c.html, Art 18
157
UnitedNations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United
Nations, Treaty Series, vol. 999, p. 171, https://www.refworld.org/docid/3ae6b3aa0.html, Art 18
158
Roe v Wade 410 US 113 (1973)
159
Doe v Bolton 410 US 179 (1973).
160
Roe v Wade 410 US, 152-53.

107
trimester of pregnancy. The trimester framework was later rejected by the Court while affirming
Roe's central holding that a person has a right to abortion until viability161.

Following the decision in the US case of Roe v Wade162, abortion has persistently remained a
controversial issue in today‗s society. According to Boquet, globally, there have been more than
1.72 billion reported cases of induced abortions worldwide since 1973 when the land mark case
of Roe v Wade opened the door for legalization of abortion163.

Arguments against abortion in Zambia arise largely from natural law thesis. The pro-life, for
instance, argue that abortion should be prohibited because it is against one of the commandments
of God which forbids taking away of human life164. They further argue that life begins at
conception and that as such, abortion should be outlawed because it essentially amounts to
killing another human. Abortion frowned upon and is generally regarded as immoral in the
Zambian society especially that Zambians profess to be Christians as per constitutional
declaration. This abhorrence for abortion is also found among religious organizations. For
example, after Zambia enacted the Termination of Pregnancy Act in 1972, the Catholic Church
in Zambia protested against the Act in a letter addressed to the Secretary General to the
Cabinet165.

People hold views about the morality of abortion for various reasons, some political or
emotional. Various issues do arise in relation to abortion and opposing positions disagree
because of differing perspectives on one or more key issues or factors such as: the moral status
of the embryo or fetus, the metaphysical and physical status of the embryo or fetus and the moral
rights of a person. The disputes raised above are very relevant to the abortion controversy
especially where legal regulation of abortion is concerned. The morality of abortion depends to
some extent on how the embryo or fetus deserves to be treated: in what sense it is a moral

161
Ibid; The word ―viable was defined in Roe as being ―”potentially able to live outside the mother‘s womb,
albeit with artificial aid‖, with the Court stressing that viability ―is usually placed at about seven months (28
weeks) but may occur earlier, even at 24 weeks.”
162
Roe v Wade 410 US 113 (1973).
163
Fr. Shenan Boquet, ―Abortion & faith 2013 available at: http://www.lifenews.com. Accessed, 1 January 2022.
164
Gadaffi, 42.
165
Letter from Secretary General of the Zambian Episcopal Conference to Secretary General to the Cabinet,
12.8.1972, Zambia’s National Archives, Robinson Nabolyato’s collection HM/79/PP/1/72/5).

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patient, whether it has the moral right not to be harmed and to pursue a life, and the kind of
moral consideration it is owed.

Discussion questions;
a. Which school of thought do you subscribe to regarding abortion between the prolife and
prochoice? Give reasons.
b. Do you think abortion is a human rights issue? Give your views on this contentious issue.
c. Should medical practitioners invoke their right to conscientious objection regarding
abortion services? If yes, to what extent?

10.7. Sexual orientation

Sexual orientation is an enduring emotional, romantic, sexual or affectional attraction to another

person. It can be distinguished from other aspects of sexuality including biological sex, gender
identity (the psychological sense of being male or female) and the social gender role (adherence
to cultural norms for feminine and masculine behavior). Sexual orientation exists along a
continuum that ranges from exclusive homosexuality to exclusive heterosexuality and includes
various forms of bisexuality. Bisexual persons can experience sexual, emotional and affectional
attraction to both their own sex and the opposite sex. Persons with a homosexual orientation are
sometimes referred to as gay (both men and women) or as lesbian (women only).

Sexual orientation is different from sexual behavior because it refers to feelings and self-concept.
Persons may or may not express their sexual orientation in their behaviors. The
word homosexual is usually avoided because of its negative connotations relating to the way it
has been used in the past. Sexual orientation is a relatively recent notion in human rights law and
practice and one of the controversial ones in politics. Prejudices, negative stereotypes and
discrimination are deeply imbedded in our value system and patterns of behaviour. For many
public officials and opinion-makers the expression of homophobic prejudice remains both
legitimate and respectable - in a manner that would be unacceptable for any other minority.

The main principles guiding the rights approach on sexual orientation relate to equality and non-
discrimination.

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According to the African Commission, in 33 African countries, adult same-sex acts are illegal,
including 24 that criminalize lesbian acts, and many other countries have recently passed laws
that restrict and punish groups that work on sexual orientation and gender identity issues. LGBT
people are harassed, threatened, and even killed in some places, including in South Africa, which
has better laws in place166.

In Zambia, just like many African states, homosexual acts are illegal. Sections 155 and 157 of
the Zambian Penal Code Act Chapter 87 criminalize same-sex conduct. Section 155 states that:
any person who has carnal knowledge of any person against the order of nature or permits a male
person to have carnal knowledge of him or her against the order of nature is guilty of a felony
and is liable to imprisonment for fourteen years. Most recently in September 2022, the
government of Zambia categorically stated that Zambia is a Christian nation and its governance
is anchored on Christian values and the rule of law and hence any sexual practice different from
what our society has considered over a period of time as normal or the correct practice, and
particularly that which is against our laws, is illegal and criminal167.

In Uganda, the penal code punishes same-sex conduct with life imprisonment. Most recently
Uganda‘s President Yoweri Museveni has passed into law the Anti-Homosexuality Act of 2023
criminalizing same sex conduct, including potentially the death penalty for those convicted of
―aggravated homosexuality,‖. The new law also creates new crimes such as the ―promotion of
homosexuality‖ and introduces the death penalty for several acts considered as ―aggravated
homosexuality.‖ It also increases the prison sentence for attempted same-sex conduct to 10
years.

In Zimbabwe, Same-sex sexual activity is prohibited under section 73 of the Criminal Law Act
2006 criminalises all sexual acts between men and acts of sodomy with a maximum penalty of
one year imprisonment and the possibility of a fine. Only men are criminalised under this law.

166
Opening ceremony – 60th Ordinary Session of the African Commission on Human and Peoples’ Rights, Niamey, Niger, May 8, 2017. ©
2017 African Commission on Human and Peoples’ Rights.
167
Ministerial Statement by Hon. Mwiimbu on LGBT.pdf. . Available at:
National Assembly of Zambia
https://www.parliament.gov.zm › files

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Zimbabwe approved a new Constitution, article 78(3) of which provides that: ―Persons of the
same sex are prohibited from marrying each other.‖

In Kenya, sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years'
imprisonment, and any sexual practices termed gross indecency are a felony under section 165 of
the same statute, punishable by 5 years' imprisonment. On 24 May 2019, the High Court of
Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not
recognise any relationships between persons of the same sex; same sex marriage is banned
under the Kenyan Constitution since 2010.

In Ghana, section 104(1)(b) of the Ghanaian Criminal Code of 1960, criminalises "unnatural
carnal knowledge" , as a misdemeanor. Misdemeanors carry a penalty of up to three years
imprisonment under Article 296(4) of the Criminal Procedural Code. Section 104(2) defines
"unnatural carnal knowledge" as "sexual intercourse with a person in an unnatural manner or
with an animal". With "unnatural manner" taken to refer to sex acts between persons of the same
sex –and oral and anal sex between people of different sexes–.

From the above analysis, it is clear that homosexuality is a form of sexual orientation is not
widely accepted in Africa as many nations have criminalized it.

 Discussion questions:
a. What is your view regarding criminalizing an act done in private between two consenting
adults?
b. LGBT activists claim that countries that have criminalized homosexuality infringe on
human rights of LGBT community. Do you agree? If yes, what are those rights which are
at stake if any?

c. As a law student, do you think human rights advocates, lawyers and other activists should
seek to ensure social justice and the dignity of lesbians, gays and bisexuals? Explain.
d. Are human rights claimed by homosexuals towards their sexual orientation really
legitimate?

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10.8. Death Penalty

Abolition and imposition of death penalty remain a controversial topic in Zambia and Africa at
large. When it comes to human rights, the discourse about implications of capital punishment on
fundamental rights is more pronounced. Human rights, justice and equity are some of the notable
considerations at the center of discussion surrounding the death penalty. For decades now, there
seem to be a clash or controversy between death penalty and the right to life. To begin with, Jack
Knight indicates that justice just like fairness is a moral concept with no agreed definition,
denoting the general notion that people should be given what they deserve168. Yet, even if it is
easily agreed that justice is a priority and is about giving people what they deserve, there is a
disagreement about what it is that people deserve especially when it comes to the kind of justice
that the alleged killer, the victim and the victim‘s family deserve in the interest of justice,
fairness169 and respect for human rights.

Proponents of death penalty argue that those who kill others should be killed as well because
once you end one‘s life you also lose the right to live. As such, the law should take an eye for
eye principle towards imposition of death penalty as this is the best way justice can be served to
the deceased and the deceased family. It is also argued that death penalty is an act of defense and
as a way to protect society from more harm as murderers are exterminated once and for all 170.
Another argument put across by proponents of death penalty is that the sentence acts as a strong
deterrence to who would be offenders.

The opponents of death penalty argue that since human rights are based on human dignity as
provided for under natural law and international treaties such as UDHR, 1948 each individual is
deemed to be of immeasurable worth and every person is valuable including a murderer. Human
life in general is to be valued not just because one has not committed a capital offense but
because of one‘s inherent self- worth and consequently which must not be taken away from an
individual through the imposition of capital punishment because right to life apply to the worst

168
Jack Knight (1998). Justice and Fairness: Annu. Rev. Polit. Sci. Vol. 1, p 425-427.
169
Andre Silveira ‘The multiple meanings of justice in the context of the transition to a low carbon economy’. A
working paper by the Cambridge Institute for Sustainability Leadership, p 3.
170
Giulio Carlo Venturi (2016). The Death Penalty: Fundamentals and Systems of Positive Law, SGSS-A.A. p 11.

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of us as well as the best of us, which is why human rights protect us all171. This argument has led
to some African countries to abolish death penalty. For example, in Makwanyane and Mcbunu
v The State, the South African Constitutional Court in 1995 declared the death penalty to be
incompatible with human dignity and found that the death penalty violates the right to life.172
This is the judgment which had the effect of abolishing the death penalty for murder in South
Africa. Most recently in 2022, amidst controversy and mixed feelings, The President of Zambia
Mr. Hakainde Hichilema equally signed a law abolishing the death penalty on considerations of
human dignity and right to life.

 Discussion questions:
a. Give your views on death penalty. Which school of thought do you ascribe to and why?
b. Do you think death penalty achieves the ends of justice for the deceased and the
deceased‘s family?

10.9. Public health pandemics

With the advent of COVID -19, the debate on public health, pandemics and human rights has
become a hot and topical human rights issue. International human rights law guarantees everyone
the right to the highest attainable standard of health and obligates governments to take steps to
prevent threats to public health and to provide medical care to those who need it. Human rights
law also recognizes that in the context of serious public health threats and public emergencies
threatening the life of the nation, restrictions on some rights can be justified when they have a
legal basis, are strictly necessary, based on scientific evidence and neither arbitrary nor
discriminatory in application, of limited duration, respectful of human dignity, subject to review,
and proportionate to achieve the objective. For example, the scale and severity of the COVID-19
pandemic clearly rises to the level of a public health threat that could justify restrictions on
certain rights, such as those that result from the imposition of quarantine or isolation limiting
freedom of movement. At the same time, careful attention to human rights such as non-
discrimination and human rights principles such as transparency and respect for human dignity

171
Death is not justice: The Council of Europe and the death penalty Directorate General of Human Rights and
Legal Affairs Council of Europe September 2010, P 14.
172
Makwanyane and Mcbunu v. The State, paragraphs 95, 146.

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can foster an effective response amidst the turmoil and disruption that inevitably results in times
of crisis and limit the harms that can come from the imposition of overly broad measures that do
not meet the above criteria.

The other issue during the public health outbreak is on vaccines. For example, when it comes to
covid-19, many concerns have arisen over mandatory vaccines in some countries. People who
worry about vaccine requirements getting in the way of their rights may be referring to both
kinds of concerns—the freedom to refuse vaccination for personal, ideological, or religious
reasons, and (in the cases of those who worry about the safety of the vaccine and its side effects,
despite overwhelming evidence that vaccines are safe) the right to be protected from harm. On
the other hand, those who support vaccines argue based on a crucial point in the vaccine debate
that human rights give all people the right to be protected from harm.

The question is whether mandatory vaccines are a violation of human rights or not. Further, it is
likely that new pandemics like COVID-19 will continue to develop, therefore, to a human rights
practitioner, the questions about vaccination are becoming more significant. These are questions
worth debate, research and interrogation by human rights students, human rights activists and
legal practitioners so as to ensure that the work is ready to face future pandemics without having
to worry about how they will be handled in light of human rights.

 Discussion questions;

a. Is there a fundamental right to refuse vaccination?

b. Are Mandatory Vaccines a Violation of Human Rights?
c. How can the government ensure protection of human rights
during a pandemic?

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10.9.1. Climate Change

Climate change is now a topical human rights issue in the 21st century due to its impact on
human life which directly impacts on the enjoyment of fundamental rights. Consequently, a
discourse on climate change should be of interest to a lawyer as this now has impact on how
businesses are done, the nature of laws, regulations and policies in place. Today, the global
community is desperately seeking ways to mitigate the scale and impact of climate change.
World leaders are locked in discussions as they attempt to find solutions that will save humanity
and the planet. Debates about the reduction of greenhouse gas emissions, a just transition to a
net-zero global economy, and who should pay for this, are ongoing. These discussions are
critical and imperative than never before.

Africa has the world's lowest per capita greenhouse gas emissions, but is one of the hardest
hit continents in terms of climate change impacts. Africa's poorest communities are often
powerless in the face of extreme weather events such as droughts and floods, while the famine
and the livelihood insecurity that ensue are frequently catastrophic.

1n 2020, a panelist of the American Bar Association Annual Meeting Showcase Program,
―Climate Change and the Legal Profession: Beyond Environmental Law‖, said the following;

―Lawyers, take note: Climate change will affect your practice. It‘s already impacting how
we live our lives and how companies do business - which impacts the law‖.

Climate change refers to long-term shifts in temperatures and weather patterns. These shifts may
be natural, but since the 1800s, human activities have been the main driver of climate change,
primarily due to the burning of fossil fuels (like coal, oil and gas), which produces heat-trapping
gases. Earth‘s climate is now changing faster than at any point in the known history of the
climate, primarily as a result of human activities. According to the World Bank, there is
scientific consensus that unmitigated carbon emissions will lead to global warming of at least
several degrees Celsius by 2100, resulting in high-impacts of local, regional and global risks to

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human society and natural ecosystems. Global climate change has already resulted in a wide
range of impacts across every region of the earth as well as many economic sectors173.

Impacts related to climate change are evident across regions and in many sectors important to
society, such as human health, agriculture and food security, water supply, transportation,
energy, and biodiversity and ecosystems; impacts are expected to become increasingly disruptive
in the coming decades.

The legal profession can play a crucial role in mitigating the climate crisis through
positive societal change, which lawyers can achieve through strengthening and upholding the
rule of law, human rights and access to justice all of which are vital for society. As a community
of lawyers, one of our primary concerns should be furtherance of justice. Faced with one of the
greatest challenges our society has ever faced, it is right that lawyers should speak out in favor of
government action to address the challenge of climate change and the pursuit of solutions
through law. A modern lawyer should know at least something about climate change and policies
on climate change including and environmental rights and how they can be addressed using
domestic as well as international legal provisions.

The United Nations Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment
Report sets out the already devastating impact of climate change and the global consequences if
changes are not rapidly made to limit global warming to 1.5 °C, but to maintain this the ―global
net human-caused emissions of carbon dioxide (CO2) would need to fall by about 45% from the
2010 levels by 2030; reaching net zero around 2050‖2. If global warming is not limited to 1.5°C,
the results will be catastrophic and result in: extreme drought and water scarcity; an increase in
extreme weather events; species and biodiversity loss and extinction; reductions in cereal crop
yields and ; threats to food security.

How can lawyers help to combat the climate crisis?

The Law Society 174 provides what lawyers should do;

173
https://climateknowledgeportal.worldbank.org/overview.

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  Lawyers should be aware of matters pertaining to climate change.

 Lawyers should approach any matter arising in the course of legal practice with regard
to the likely impact of that matter upon the climate crisis

 Lawyers should provide competent advice to clients explaining how they can achieve
their objectives in a way that mitigates the effects of climate change and promote
adaptation to climate change, at the same time as identifying any potential legal risks and
liabilities that may arise from action or inaction that contributes to the climate crisis.

 Lawyers should advise clients, where applicable, about the benefits of disclosing
climate-related risks and opportunities related to their entire business operation (including
supply chains) when reporting to regulators, investors, and stakeholders about how they
have assessed, monitored and mitigated and reported climate related risks

Further, Lawyers can represent individuals, organizations, and governments in environmental

cases, working to protect the environment and hold polluters accountable. They can also work to
shape environmental policy and regulations, advocating for stronger protections and ensuring
that environmental laws are enforced. Lawyers can use climate litigation – through court cases,
legal or regulatory complaints, and other methods – to push for greater ambition on climate
action and to hold institutions, like government and companies, accountable for climate
damaging practices. Many climate cases seek to hold governments accountable for failing to act
in line with climate commitments and targets, like the Paris Agreement or the commitment to
reach net zero greenhouse gas emissions by 2050. This can be brought using human rights
arguments – that states have a human rights obligation to prevent the foreseeable adverse effects
of climate change, and ensure the rights of those affected are protected. This is often based on
the UN Declaration of Human Rights, or the International Covenant on Civil and Political
Rights, and covers rights to life, property, and culture. Following decades of engagement and
advocacy by civil society, the UN Human Rights Council in 2021 officially recognised the
human right to a clean and healthy environment, which will likely be used in future human rights
based climate litigation.

174
The Law Society. (2021). Creating a climate-conscious approach to legal practice. Retrieved
from https://www.lawsociety.org.uk/topics/climate-change/creating-a-climate-conscious-approach-to-legal-
practice#download-the-resolution

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 MODULE CONCLUSION

The module has provided an introduction to basic human rights philosophy, principles,
instruments and institutions, and looked at sources of human rights law so that a student can
know how to research, and where to find human rights materials and relevant issues that will be
necessary to future work in the field, and how to construct and advocate effective legal and
policy arguments using international human rights norms and discourse. The module also gave
an overview of current issues and debates in the field of human rights with focus on the problems
specific to Zambia and Africa at large.

The module has explored some aspects of the diverse and increasingly complex body of
international law of human rights that has both national and international application. This
module has also analyzed the ways in which allegations of human rights violations are dealt with
in the Zambian courts and the impact of human rights discourse on the dignified existence of an
individual. Also discussed in this module is the concept of "constitutionalism", and its
commitment to individual rights and the bills of rights as supreme law and the justiciability of
human rights in Zambia. Also covered are economic and social rights, regional human rights
systems and the national system for human rights protection. The module also introduced
students to learn to relate the universal rights concept, guaranteed by international institutions, to
individual rights, established by the Zambian Constitution and protected (or not) by the state.

This module has also provided enough material to equip students with the basic tools necessary
to work with the specific sources, methods and institutions of the international human rights
system and to apply them in the Zambian context. Implicit in this approach is the assumption that
human rights call for legal and other advocacy skills. Accordingly, the module requirements
focused on developing the ability to recognize the factual and the legal problems and to analyze
them, the capacity to apply the legal information in practical situations as well as the mastery of
the applicable law- knowledge of the applicable law, understanding of the norms, aptitude to
interpret and provide a critical analysis of the law and competence to understand the context in
which the law exists.

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